My query asks how long must an employer wait for an employee to participate in an investigation where the employee is providing medical certificates confirming too stressed to participate. The employee has been suspended on full pay pending an investigation into a potential gross misconduct. The employee provides medical certificates on a monthly basis stating too stressed to participate in the investigation. The company doctor also agrees with this assessment. How long must an employer wait for this employee to participate in the absence of any prognosis or any possible date for participation? As the employee is on full pay, it is costing the company significantly.

Posted in : First Tuesday Q&A ROI on 7 October 2014
Elaine Mettler
Arthur Cox
Issues covered:

This is a difficult situation to which there is no easy answer. The employer must take direction from the medical experts and insofar as this employee has been certified by the company’s doctor as being unfit to participate in the proposed investigation process, the employer cannot advance the process until such time as an updated medical report confirms the employee’s fitness to participate. The employer is entitled to look for a prognosis from the company doctor in terms of the short-medium term and the long term.

No determinations arising out of the investigation should be made in the employee’s absence, as to do so would deny the employee’s right to fair procedures and natural justice.

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Back to Q&A's This article is correct at 02/09/2015

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Elaine Mettler
Arthur Cox

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