Can you force an employee to submit to a psychiatric or medical assessment?

Trent Sebbens, Partner at Ashurst, explains how determining whether a direction is reasonable will depend on the particular circumstances of the case.

An employee with a physical or psychological illness or injury can pose challenges for an employer. The condition of the employee may pose a risk to the health and safety of the employee or other workers, and long term or frequent absences may also cause workforce and operational difficulties.

An employer may wish to determine whether the employee is capable of performing the inherent requirements of their role, or, if the employee has been on a long term absence, the prognosis of the employee and when they may be fit to return to work. There are a number of options that may be available to an employer to require an employee to attend a medical examination to obtain this information:

(a)    Voluntary agreement: The employer can request the employee to attend the examination and the employee can consent to do so voluntarily.
(b)    Express right: If the employer has an express right under the employee's contract of employment or in an enterprise agreement, then the employer can direct the employee to undertake a medical examination in accordance with the terms of the instrument.
(c)    Legislative right: There may be an existing requirement under legislation that the employee participate in a medical assessment.
(d)    Lawful and reasonable direction: The employer can give a direction that the employee attend the medical examination, if the direction is a lawful and reasonable.
If an employee refuses a reasonable and lawful direction, an employer may be entitled to dismiss the employee for failure to follow that direction.

Reasonable and lawful direction

Whether a direction is reasonable will depend on the particular circumstances of the case. Issuing a direction might be lawful and reasonable where:
•    medical certificates provided by the employee are vague or lacking in detail
•    there have been frequent or lengthy unexplained absences from work
•    the employee has not offered any information about their prognosis
•    the nature of the illness or injury of the employee, and its effect on the employee's ability to safely perform work, is not known; or
•    there is conflicting medical evidence.

A court or tribunal will also take into consideration the employer's obligations under safety legislation to ensure the safety of the employee and other workers, when considering whether the request is reasonable.

A Full Court of the Federal Court in Grant v BHP Coal Pty Ltd [2017] FCAFC 42 recently upheld a decision of the Fair Work Commission that the failure of an employee to follow a direction to attend a medical examination was a valid reason for dismissal. The Full Court held that while relevant coal mining safety legislation that applied to the workplace did not declare in express terms that coal mine workers (such as the employee) may be required to undergo medical examinations, the legislature intended that they may be so directed if it is reasonable and necessary to ensure that anyone is not exposed to an unacceptable level of risk.

Specialised medical examination

Whether a direction to attend a medical examination by a medical practitioner with a specialisation, such as an occupational physician or a psychiatrist, is reasonable will depend on the circumstances, and in particular, the available information on the medical condition of the employee.

For example, in Thompson v IGT (Australia) [2008] FCA 994, the Federal Court held that it was reasonable for an employer to direct an employee to attend a psychiatric assessment to determine whether the employee was fit to perform his duties and whether he could do so safely. In reaching this conclusion, the Court had regard to the employee's history of significant absences (including unexplained absences), the employee providing medical certificates that only stated "medical condition", and inconsistencies in the employee's own statements about his health.

Conversely, in Schoeman v Director-General, Department of Attorney-General and Justice [2013] NSW1RComm 1018, a tribunal found that the employer's direction to attend a psychiatric assessment was unreasonable because the employee had sustained a wrist injury (in circumstances where, some years prior, the employee had taken time off due to psychological injuries).

Risks

Assessing fitness for work can be a complicated and fraught process. There are a range of legal risks which an employer could be exposed to, such as breaches of the general protections provisions of the Fair Work Act 2009 (Cth) or anti-discrimination laws, unfair dismissal claims, breach of contract or claims under workers compensation laws.

There is no "one size fits all" approach and each step in the management of an ill or injured employee must be carefully considered in light of each employee's circumstances.

This article was contributed by Trent Sebbens, Partner at Ashurst