In a recent High Court case, Delaney v Central Bank of Ireland [2011], which involved a referral by the Central Bank of a senior employee for psychiatric assessment, Ms Justice Laffoy commented on the principles to be adhered to by employers in referring employees for medical examination in order to accord with fair procedures.
Ms Justice Laffoy found that, in this case, the referral of the
Plaintiff for psychiatric assessment had been effected in breach of
his entitlement to fair procedures and natural justice. The
employer had failed to inform the Plaintiff of the documentation
that was given to the psychiatrist prior to the assessment
taking place. Furthermore, when the Plaintiff's Solicitors
later requested to be provided with a copy of this
documentation, the employer had sought to rely on legal privilege
in refusing to provide the Plaintiff with same. Ms Justice
Laffoy also found that the referral process was further tainted by
the furnishing by the employer of additional documentation to the
psychiatrist in the period between the assessment and the issuing
of the report.
In his report, the psychiatrist recommended that the Plaintiff be
placed on sick leave until such time as he responded to treatment.
On foot of this report, the employer did not permit the Plaintiff
to return to work. Ms Justice Laffoy held that, in view of
the fact that the referral process had been conducted in breach of
the Plaintiff's entitlement to fair procedures, the decision
not to allow the Plaintiff to return to work was arrived at in
breach of fair procedures and was, therefore, null and
void.
The following principles serve as a reminder to all employers of the process to be followed to avoid the dangers and pitfalls around medical examinations:
- Ensure all contracts of employment provide the employer with the authority to request an employee to attend a medical practitioner nominated by the employer.
- Make sure that the basis upon which the employer is referring the employee for medical or psychiatric assessment is clear. It is essential that only information that is strictly relevant to the reason for the referral is provided to the doctor or psychiatrist conducting the assessment.
- Any information provided to a doctor or psychiatrist must also be given to the employee and should be provided to the employee in advance of the referral.
- Where documentation is furnished by an employer following the assessment, it is essential that the employee is informed, provided with copy documentation and allowed to comment on its contents.
- In this case, additional documentation furnished by an employee against whom the Plaintiff had made a complaint of bullying was furnished to the psychiatrist. Ms Justice Laffoy found that the source of the additional documentation was infected by a real likelihood of partiality or bias.
- The employee should be afforded an opportunity to respond to the issues raised in the medical report in accordance with the principles of fair procedures.
- An employer should carefully consider the appropriateness of the medical specialist to whom the employee is referred for a medical report. For example, a GP may not be the appropriate medical specialist to deal with psychiatric issues.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.