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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50138
Experience:  Qualified Employment Solicitor
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I am currently on long term sick leave following open heart

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I am currently on long term sick leave following open heart surgery in July of last year to replace my aortic valve. My gross salary has also been halved since the end of December.

I should have had the surgery in June, but it was cancelled at the last minute and as I was in such a state, Occupational Health informed my employer that it was unfit for work until I had had my surgery.

Following my surgery there was an indirect complication resulting in numbness and shooting pains in my left leg which became apparent post-operatively whilst in hospital.

Following a neurological assessment, MRI and nerve conduction tests, all on the NHS, I willingly attended two Occupational health appointments at the request of my employer.

I saw a different doctor on each occasion. Both doctors agreed that I was unfit for work and informed my employer of this. I also received a copy of each doctor's report. They also recommendedto my employer that I should have pain management to facilitate a return to work.

After my employer received the second report, another doctor over ruled the decision that I am not fit to return to work and my immediate manager broke the "bad news" (his words) that HR wanted me back immediately.

Can a doctor do this without seeing/examining the patient in person?

Secondly, am I within my rights to request and see the report/recommendation about me from the doctor who did not examine me?

Lastly, even though my current Med 3 Statement of Fitness to Work form from my GP had me signed off until 28th April, was my employer within their rights to demand that I return to work before the expiry of the med 3

Within that demand, they also said that if I did NOT return now, they would refuse to help me, in as much as getting referred to a pain management specialist, as recommended by both OH doctors.

I have been left really confused and reeling from this sudden decision and would really like to know where I stand.

Thank you.

Ben Jones : Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How long have you worked there for? Please note I am mobile today so may not be able to respond immediately but you will get my full response later in the day, thank you
Customer: 13 years 5 months
Ben Jones :

Many thanks for your patience. A doctor is technically able to make a decision without seeing a patient and examining them in person but that would depend on the circumstances and what they are making a decision on. I am no medical expert but there would be situations when an opinion could be forced based on information that is available, for example from reports that were produced from past meetings. So it is possible.


You are entitled to request copies any reports made about you from the latest specialist – it is after all personal information about you and under data protection regulations. You can state to the employer that you are making a subject data access request and specify the documents you wish to see.


Finally, if there is conflicting information and recommendations from medical professionals about your fitness to work, your employer needs to act more cautiously than normal and just choosing the report that is most favourable to them without considering any potential repercussions it may have on you would rarely be fair. This is especially the case if your GP and two other doctors have said you are not fi and the employer is just relying on one conflicting report that says you are fit. Unless much had changed between the different reports, there is obviously a good argument that you may still be unfit for work and further enquiries should be made by the employer before they just jump to a conclusion that you are fit to return and ‘penalise’ you for not being back in work as soon as the latest report came in.


In terms of what you can do about this, the first step is informal discussions with the responsible people in your workplace, but after that it would be a formal grievance. The final step is legal action but only if it becomes necessary – it could be disability discrimination or if you are dismissed – a claim for unfair dismissal, but hopefully it would not get to that.

Ben Jones :

Hello, let me know if you need me to answer any queries in relation to the above

Ben Jones :

Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? I just need to know whether to close the question or not? Thanks

Customer: I believe it has answered my query. Thank you. Hopefully your answer will assist me when I go back (under duress) on Tuesday.
Ben Jones :

Hope so too, best of luck and remember you have rights too so don't give in too easily!

Customer: Should I keep this thread open in case anything comes up on Tuesday linked to this, or if necessary, start a new question?
Ben Jones and other Employment Law Specialists are ready to help you
Hi, if you could please leave a rating now for the advice so far that would be appreciated and the question won't close so if needed I can deal with a couple of follow up queries next week if needed. If you need ore detailed advice then you can start a new question for my attention. Many thanks