Letter to doctor requesting medical report

It’s possible to fairly dismiss an employee on the ground of lack of capability due to long-term ill-health but first you must take all reasonable steps to find out the current medical position. This will involve obtaining a medical report. Also, be aware of the Equality Act 2010.

Medical evidence

Before contemplating dismissing an employee on the ground of lack of capability due to long-term ill-health, you must first take all reasonable steps to find out the current medical position. This will necessarily involve obtaining, with the employee’s express consent, a medical report from their GP, specialist or consultant, using our Letter to Doctor Requesting Medical Report. You can also use this letter for persistent short-term sickness absences in order to establish whether the employee has an underlying medical condition which could be responsible for their high level of absence. Our precedent letter includes a request for specific medical information which relates to the employee’s job and it asks a number of key questions. Medical investigation is an essential limb of any fair dismissal on ground of lack of capability due to ill-health. Although the employee’s GP will be the starting point, a specialist’s medical opinion may also be necessary.

Disability discrimination

A medical report may also be helpful in establishing whether or not the employee has a disability within the meaning of the Equality Act 2010. This will be the case for both long-term and persistent short-term illnesses, both of which could stem from a disability. This is important because, as well as the possibility of an employee making a claim for unfair dismissal if they have the necessary continuity of employment, there is the added risk of the employee bringing a claim of disability discrimination. The Act applies irrespective of the length of employment

Disability defined

Disability is defined under the Act as “a physical or mental impairment” which has “a substantial and long-term adverse effect on [an employee’s] ability to carry out normal day-to-day activities”. The employee’s ability to carry out normal day-to-day activities is to be taken as including a reference to their ability to participate fully and effectively in working life on an equal basis with other workers. The effect of an impairment is long-term if it has lasted at least twelve months, or if it is likely to last at least that long, or if it is likely to recur if in remission. Cancer, HIV infection and multiple sclerosis are all deemed to be disabilities from the point of diagnosis. In considering what is an adverse effect, the fact that an employee can, with great effort, carry out the activity does not mean that their ability to carry it out has not been impaired. In addition, where the employee is on medication or their impairment is being controlled by medical treatment or the use of an aid, you must consider how the activity would have been affected without the medication or control.

What is disability discrimination?

There are four ways in which you might unlawfully discriminate against a disabled employee. These are by:

• treating them unfavourably because of something arising in consequence of their disability and the treatment is not a proportionate means of achieving a legitimate aim
• less favourable treatment because of their disability (direct discrimination)
• indirect discrimination
• failing to make reasonable adjustments.

A dismissal on long-term incapacity grounds could therefore amount to one or more forms of disability discrimination.

Reasonable adjustments

Discrimination also occurs if you fail to comply with your duty to make “reasonable adjustments”. The size and resources of your business are relevant in considering whether you have made reasonable adjustments. Reasonable adjustments may include, for example:

• adjusting your work premises
• re-allocating job duties
• transferring the employee to fill an existing vacancy
• altering the employee’s work or training hours
• assigning the employee to a different place of work or training
• allowing the employee to be absent for treatment and/or rehabilitation
• arranging training or mentoring
• acquiring or modifying equipment
• modifying instructions or manuals
• modifying procedures for testing or assessments
• providing supervision or other support.