Block 3: Occupational Health Management - Section 6: Medical ajudication

OHM 6.1:  Substantive and Procedural Fairness

1          APPENDIX 1: SUBSTANTIVE AND PROCEDURAL “FAIRNESS”. TO BE PUT INTO THE LAW SECTION OR TO BE A DEEPER PAGE

1.1         Substantive fairness

Factors that should be considered to ensure substantive justice are the following:

·         Is the employee capable of doing the required work and fulfilling his tasks?

·         The type, severity and duration of the disability

·         Is absence from work temporary or permanent? (Medical information is of major and decisive importance)

·         The impact of this on the employer’s operations

·         The size of the employer’s business

·         The length of the person’s employment

·         The cause of the disability (in case of alcohol – or drug abuse, for instance, the employer should consider reasonable aid by way of consultations and rehabilitation)

·         Can the post possibly be adapted to accommodate the employee?

·         Possibility of alternative suitable posts before dismissal.

Where an employee’s disease or disability is related to his work, the obligations of the employer increase.

Two factors are decisive when establishing what weighting the length of absence should carry when making decisions:

·         The need of the employer to replace the employee with a healthy worker (the type of post held and the size and nature of the business concern is of importance in this case), and

·         The effect the employee’s absence has on other employees, e.g. are they expected to work overtime to do his work?

1.2         Procedural fairness

To ensure a fair and just process in case of disability caused by disease or an accident, it is necessary to establish all the facts. The employer should be part of the process by way of consultation. Discusions should be held with the employee, to ensure that the impact of the absence on the normal operation of the company is fully understood.

The employee must be aware that sick leave may only be used in genuine cases of illness and that it is not to be used as a type of annual leave without really being ill. The employee must also be informed that:

·         Regular absence causes operational problems;

·         The company and other workers have expectations about the attendance and work performance of a co-worker.

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