Instead of asking 'who declares fitness' you may want to ask the manager 'what do you mean by 'fitness''.
Under the Equality Act means OH at PEQ stage looks at MEDICAL fitness to undertake the tasks and duties of the contracted role. Do them safely and effectively for long periods of time might mean Fit with modifications but if they were fit for just the day you saw them, your assessment would still stand, we can't say a snapshot of one day is a guarantee of forever..
Tearfulness is NOT a medical issue - people cry for all sorts of reasons and if they all went off sick god help the economy.
At GOSH if you cry frequently in front of children you can be sent home because depressed adults can negatively impact on the psychological and physical stability of children but mostly (I hope) they send them out to wash their faces and pull themselves together and then chat to them about what's going on or put them in a room with a phone to the counselling service as appropriate.
If someone chooses to come to work - they are 99 times out of 100, saying I am fit for work (or please see I am sick and send me home so I can say I came to work and you sent me home).
So fitness is one thing and psychological distress is another. So would some consideration enable them to work easier, safer, with more confidence, with less risk of being causing undue distress, with more sustainable energy, well that is a whole new OH, in negotiation with the manager, ball game.
I always try to be clear that my advice is divided into NEEDS, and 'could be helpful' note use of the word 'could' and not 'would'. Needs means they do or don’t work depending on the provision of the request and helpful means the manager can tweak and there is unlikely to be immediate harm but things may take longer to get back on track. e.g. we do not have the evidence to say work 3 hours only a day or you will get sick again and you'll be fine if you do 2 hours and 59 minutes so use the word 'could'!!!
There are very few absolutes in OH these days unless you have got live threatening, high risk of serious harm type health affecting or health related issues.
Risk assessment:
What is the likelihood that harm will occur?
What is the severity of the harm that might occur?
High severity regardless of frequency = not fit
the rest is a judgement call...
So without evidence to the contrary, which you can only get from seeing them and talking to them, they have to be considered fit, no question. If the manager let them come to work then what does it say if they let them come and they thought they weren't fit for work? And don't forget that we are not here to undermine the employee's appropriate coping strategies by forcing them to adopt the medicalised model of managing their distress. If the (lazy) manager put the referral forward to the employee as another form of support instead of saying I want OH to answer my concerns I am not surprised she refused.
The reasons we use a formal referral process is to force the manager to be crystal clear about their concerns and be complaint with the Data protection Act. However, sometimes you have to help them.
Good Luck
Sue
Susan Gorton | OH Nurse Manager | Occupational Health Department | Great Ormond Street Hospital NHS Foundation Trust | Level 3, Ormond House, 26-27 Boswell St., London WC1N 3JZ |020 7405 9200 Ext 0247 | DD to OHD 020 78138554 | Direct Fax 020 78138355 | Mobile 07833294568
Please be advised that all e-mail communication relevant to assisting in the management of the OH process will be printed and entered into the individual's OH file or copied and added as an electronic note on their electronic OH record. This may therefore be disclosed under the Data Protection Act (1998).
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-----Original Message-----
From: [log in to unmask] [mailto:[log in to unmask]] On Behalf Of Catherine Mackay
Sent: 21 June 2012 01:04
To: [log in to unmask]
Subject: Re: [OCC-HEALTH] Who declare's fitness for work?
Dear Jacqui
The first concern here must be the safety critical one - for the employee, others who may be at risk and the whole organisation. It is for management to follow their own procedures in respect of their Safety Critical Policy and Procedures - they must have one in what appears to be a high risk energy environment. The employee needs to comply with the organisation's procedures and that will normally be an assessment by OH, if that is what the procedure states - if there is lack of employee compliance, then Management need to do what they have to do, including escalation to higher management to have the employee follow procedure for the greater good. You do mention the potential disastrous possibilities if concentration is reduced and a distressed employee in a safety critical role could be very high risk and your 'major safety issues' really makes a strong statement. Management risk assessment must be part of their procedures too. But your role is clear - you need a referral, once you get that, you can decide if the employee is fit or not, if you are unsure, you need to refer for a medical opinion outside of the counselling and likely temporarily redeploy until you have clarity regarding the employee's safe working in high risk environment.
Please find link from HSE:
www.hse.gov.uk/construction/healthrisks/workers.htm
I hope this is a little bit helpful.
Best regards
Catherine Mackay
The issue of Pre-placement is quite clear - any lack of medical clarity requires further investigation whether On Wed, 20 Jun 2012 21:37:47
+0100, jacqui livock wrote:
> Hi
>
> I have been asked to comment on advice (or perceived lack thereof)
> received by HR from another OH professional. very long case... short
>
> An individual is in a role requiring high levels of concentration.
> individual had been close to tears at work on more than one occasion.
> Managers were concerned spoke to individual - individual had already
> sought private counselling and had started therapy- not sure what. no
> GP input/medication. No sickness absence- wants to be at work. OH been
> asked opinion on fitness for work and gave the general advice ...if
> they are upset/tearful then concentration is likely to be somewhat
> affected but refer and advice will be given.
>
> Manager wanted cast iron assurances the individual is fit due to
> nature of job as there are major safety issues.
>
> Individual declined offer of OH as they see counsellor and dont want
> any more support, insists they are fit for work, declare no issues
> with concentration, and gave managers details of counsellor so OH
> could speak to counsellor and confirm the individual is fit for work.
>
> OH refused to give an opinion without meeting individual. individual
> argues that they have never met OH so how would OH they know if
> concentration is affected or personality changed? HR argues that OH
> comment on fitness for work at pre appt stage without face to face
> contact and go on face value of mental health declarations.
>
> OH refused to contact counsellor as counsellor acts for individual and
> does not consider business need/implications so will say what
> individual wants to hear.
>
> I always keep in mind the phrase "Mi'Lud" when advising so some
> questions/thoughts which have arisen :-
>
> Can a counsellor who has met someone for the first/second time advise
> on concentration and fitness for work? can an OH professional?
>
> How can OH be certain that a counsellor is qualified to advise on
> fitness for work?
>
> If OH contact the counsellor and directly pass on the counsellors
> opinion will that potentially be deemed as OH advice? should OH
> comment?
>
> If counsellor says person is fit for work....who would be
> "accountable/at fault" if individual has a lapse of concentration and
> this causes an incident (this will not be minor - gas/chemical
> leak/explosion in residential area.)
>
> If major incident occurred and OH know of the managers concerns but do
> not advise...where do OH stand? (not literally!)
>
> I know individual has duty of care but in this case, can it be deemed
> as impaired? managers are already concerned, have sought
> advice/support from OH and not had any recommendations.
>
> Who in your opinion is best placed to advise on work ability/fitness
> in this case?
>
> ...over to the collective....
>
> I seem to have lost my life outside work, if anyone finds it can they
> please return it as I would like it back!!!
>
> Jacqui ******************************** Please remove this footer
> before replying.
>
> OCC-HEALTH ARCHIVES: http://www.jiscmail.ac.uk/lists/occ-health.html
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>
> Links:
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