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Dr X was a Consultant Paediatrician at a Trust. Dr X had a longstanding underlying medical condition which put them at a higher risk from COVID-19, and so they were deemed to be ‘clinically extremely vulnerable’. Occupational Health (OH) advised that Dr X should be permitted to work from home even though the Government’s shielding advice has been lifted, unless considered essential and working from home could not be accommodated, in which case OH advised that Dr X should be required to work in hospital green zones only where staff and patients had been formally tested for COVID-19 and found to be negative. Following this, Dr X was reviewed by OH again who among other things advised that Dr X should continue with on-call duties working remotely, but with a back up to take over if the case was COVID-19 positive or there was a suspected COVID-19 case and Dr X was required to visit on site. Unfortunately, the Trust were unable to accommodate this as it was not possible to put two people on-call, and so Dr X was asked to either come off the on-call or provide an undertaking to confirm that they were willing to go against OH’s advice. Dr X wanted advice about this as to how to proceed and the possible consequences of both options.
The Trust has a duty to act reasonably, and so whilst we could not pre-empt what they would agree to, we advised Dr X that if they wanted to come off the on call and modify their job plan then the usual job planning principles of collaboration and mutual agreement would apply, and the Trust would have an obligation to consider whether they could act upon OH’s recommendations. Likewise, Dr X was advised that the Trust owes a duty of care towards its employees, and so would need to listen to Dr X’s concerns and try to accommodate their request for reasonable adjustments in line with OH’s advice.
Dr X was advised not to agree to an undertaking to work against OH”s advice as this could have adverse consequences for them in the long-term.
We advised Dr X that if a plan was agreed upon and accepted, then there was no reason for management to take any action against them. However, if Dr X were to have acted on OH’s advice by coming off the on call without management’s approval, then this could have been deemed to constitute an unauthorised absence which could, in theory, lead to disciplinary proceedings and/or a regulatory referral.
Dr X met with management to discuss OH recommendations. We advised Dr X that they should not commit to anything during the meeting if they were unsure until they had consulted with us first. Management of the Trust arranged a suitable work plan for Dr X which allowed them to do administrative work off site, and Dr X was happy with these working arrangements.
Employers have a duty to act reasonably, and so if OH makes a recommendation, then employers will have an obligation to consider whether they can act upon this and make reasonable adjustments.
Doctors can not and should not act on OH recommendations alone without management approval.
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