Doctor, doctor: When and how employers can challenge medical evidence

By Alex Millman and Lindsay Carroll, NRA Legal

Employees with medical conditions can present unique challenges for employers. While businesses should, and often do, seek to provide equal opportunity for all, there are some cases where this is simply not possible.

It is an unfortunate truth, however, that sometimes the provision of a medical certificate is seen as a “get out of jail free” card. This is something a human resources manager will be far too familiar with; the scenario of an employee who cannot attend a disciplinary meeting, or perform a specific unpleasant duty, because of an unspecified “medical condition”.

As a rule, managers should not stand in the shoes of qualified medical professionals. However, there are a limited number of circumstances where a medical opinion may not be as significant as originally believed.

 

Unclear connection between employee’s condition and employer’s requirements

In some cases, it may be open for an employer to challenge an employee’s ability to participate in certain processes or tasks where the connection between the employee’s condition and the employer’s requirements is unclear.

This often arises in cases where an employee has provided a medical certificate in the context of a disciplinary process, as while the employee’s condition may make them unfit for their usual duties, it may be possible that the employee’s condition does not prevent them from participating in the disciplinary process.

In Bond v KB Redman Pty Ltd t/a Toukley Tire Power [2014] FWC 4823, Commissioner McKenna was required to consider several medical certificates provided by the employee prior to his summary dismissal.

Although the Commissioner was dealing with a question of whether the unfair dismissal application should be permitted to be filed outside the 21-day time limit, the Commissioner noted that one of the medical certificates stated that the employee would be unfit to participate in a disciplinary process due to elective leg surgery.

The Commissioner noted that “it is unclear why elective leg surgery would have rendered the (employee) unfit to attend any meeting with the (employer), or enter into any written or oral communications with the (employer).”

In such a situation, where the medical restrictions do not appear to logically flow from the medical diagnosis, it is open for the employer to question the veracity of the medical restrictions.

 

Medical restrictions based on out-of-date information

In other cases, employees may assert that a historical medical condition prevents them from undertaking certain tasks or fulfilling certain requirements.

Where these historical conditions are properly validated by historical medical documentation, then there is a much more limited scope to contest the assertion.

However, where an employee asserts a historical medical condition but does not provide any contemporaneous medical assessments to back it up, it is hard to assess the veracity of these claims. Sometimes, the historical condition asserted is not one diagnosed by a medical professional, but a “self-diagnosis”.

In Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818, an employee sought a remedy for unfair dismissal after refusing to receive an influenza vaccine in accordance with the requirements issued by the State Chief Health Officer.

The Chief Health Officer’s directions included an exemption for persons who had experienced allergic reactions to influenza vaccines in the past. The employee asserted that she had experienced an adverse reaction to an influenza vaccine in 2016, and was therefore excused from receiving a vaccine.

The employee relied on three documents in support of her assertion:

  • a letter from a practitioner of traditional Chinese medicine;
  • two letters of support from her general practitioner.

The issue that faced the employee was that none of these documents amounted to a medical diagnosis of her condition in 2016/17 when, she asserted, she suffered the adverse reaction to an influenza vaccine.

All of these documents were dated shortly prior to the employee’s dismissal in 2020, and relied wholly on what the employee described to the authors of these documents rather than a diagnosis of her condition at the time.

As such, the employee had not, in fact, provided sufficient evidence to demonstrate that she had in fact suffered an adverse reaction to an influenza vaccine, and was not able to rely on the exception in the Chief Health Officer’s directions for such persons.

 

How employers can challenge medical evidence

The rule that managers should not stand in the shoes of a medical professional remains true; where an employer wishes to challenge medical evidence, it should be based on separate medical evidence obtained either directly from the employee’s treating doctor (with the employee’s written consent) or through the facilitation of an independent medical examination (IME).

Only in the most obvious of cases – such as a leg injury apparently making an employee unfit to attend a phone call – should an employer even consider going against medical evidence, and even then, a level of risk attaches.

In most cases, the only circumstance in which an employer may forge ahead regardless of the medical evidence is if the medical evidence does not do what the employee believes it does.

For example, if an employee provides a medical certificate stating that they should not be exposed to a particular substance, and the employer is not proposing to expose the employee to that substance, then any objection by the employee based on that medical assessment is moot.

However, given the many ways in which disputes around medical fitness can be challenged – either their unfair dismissal claims or anti-discrimination claims – a level of caution is always advisable.

 

For a confidential discussion about how to manage processes such as those discussed in this article, contact NRA Legal on 1800 572 679