Category: Stress

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Data Protection Act 2018 Employment Law HR Stress

Guest Blog | Minimising Workplace Coaching Risk: Why HR governance matters more than ever

UCA logos superimposed on a photograph of Rhossili Bay in Wales

By Amanda Morgan, UCA Cymru

As coaching becomes deeply embedded in leadership development, wellbeing, and organisational change, UK employers face a silent compliance risk: how do you guarantee quality and safeguard your business in a completely unregulated market?

When commissioning external training or legal counsel, HR professionals demand rigorous procurement checks. Yet, workplace coaching is frequently procured on vibes, historical certifications, or personal recommendations.

Recently shortlisted for the HR in Wales Awards 2026 (Creativity & Innovation), UCA Cymru, the Welsh arm of the Universal Coaching Alliance, presents a new framework for HR leaders and employment law advisers looking to mitigate risk and enforce robust professional assurance.

The Risk Context: High exposure, low regulation

Today, coaches are routinely dropped into high-sensitivity workplace environments to manage:

  • Senior Leadership & Strategy: Handling sensitive commercial data.
  • Wellbeing & Stress Management: Navigating mental health boundaries.
  • Disciplinary & Performance Improvement Plans (PIPs): Interventions that could impact potential Employment Tribunal claims.

Unlike legal or medical professions, coaching lacks centralised statutory regulation. Accreditation pathways vary wildly. Many practitioners operate without ongoing supervision, meaning an employer’s primary assurance is often a historic qualification that may be years out of date.

From an HR governance perspective, this raises critical questions:

The Legal & HR Blindspot: If a coach operating in your business crosses ethical boundaries, mismanages a mental health crisis, or breaches confidentiality, where does the liability sit? How can you prove you fulfilled your corporate Duty of Care?

Moving the Needle: Accountability over subscription fees

UCA Cymru rewrites this dynamic by decoupling professional credibility from financial renewals. Their model argues that credibility must be proven through current, ongoing behaviour and accountability, not a yearly subscription payment.

To maintain accredited status within UCA Cymru, coaches must consistently evidence:

  • Active, documented professional experience.
  • Strict adherence to a defined ethical code.
  • Mandatory, regular supervision.
  • Continuous Professional Development (CPD) mapped to modern workplace risks.

By removing ongoing renewal fees and replacing them with strict, evidence-based compliance checks, the model aligns perfectly with HR procurement standards: credibility is tied to live governance, not past prestige.

Built-In Safeguards: Supervision and CPD

In professional coaching, supervision is the ultimate risk-mitigation tool. It acts as an early-warning system for boundary management, ethical dilemmas, and psychological safety.

While many coaches treat supervision as an optional extra, UCA Cymru embeds it as a non-negotiable expectation. To remove financial barriers to compliance, they offer subsidised group supervision. For employers, this ensures that coaching interventions are monitored by a wider network of peers and legal/ethical frameworks.

Furthermore, their mandatory CPD reflects the immediate realities faced by modern UK HR departments, targeting:

  • Trauma-informed workplace practices.
  • Neurodiversity and ADHD-informed coaching (reinforced via ANUCA, their specialist arm).
  • The ethical and responsible use of AI in professional development.

Language, inclusion, and psychological safety 

For an intervention to be effective, there must be absolute trust. In Wales, and across increasingly diverse UK workforces, language and cultural nuance directly dictate psychological safety.

By actively supporting and standardising bilingual practice (Welsh and English), UCA Cymru doesn’t just meet Welsh Language Standards. It actively reduces miscommunication risks in sensitive HR scenarios.

Checklist: Is your organisation procuring coaching safely? 

Use this checklist to audit your current internal and external coaching pool against modern HR governance standards.

1. Professional Standards & Credibility

  • Is the coach a member of a professional body with an enforceable code of ethics?
  • Does their accreditation require proof of current practice, or are they relying on a historic qualification?
  • Is their professional standing audited through ongoing behaviour rather than just annual fees?

2. Risk Management & Supervision

  • Is the coach engaged in regular, structured professional supervision?
  • Is there a clear protocol for the coach to flag organisational or mental health risks without breaching core confidentiality?
  • Does the coaching framework clearly distinguish between coaching, counselling, and formal HR processes?

3. Diversity, Inclusion & CPD

  • Is the coach trained in neurodiversity-informed practices (e.g., ADHD awareness)?
  • Can the coaching be delivered in the employee’s language of choice, where operational standards require it?
  • Does the coach’s CPD cover modern workplace issues like psychological safety and AI ethics?

Why this matters for HR leaders

Coaching is no longer a peripheral corporate luxury; it is a core operational tool used in high-trust, high-stakes scenarios. Implementing rigorous checks isn’t about micromanagement. It’s about protecting your employees and demonstrating robust corporate governance should an internal grievance or tribunal arise.

Take Action: Secure your coaching governance

Don’t wait for a boundary breach or a failed intervention to audit your coaching standards.

  • Review Your Roster: Benchmark your current coaching providers against the checklist above.
  • Connect with the Experts: To learn more about evidence-based accreditation or to source verified, supervised coaches who understand HR risk, visit UCA Cymru.
  • Download the Framework: PDF Checklist to share with your procurement and leadership teams.

About UCA Cymru

UCA Cymru is the first regional branch of the Universal Coaching Alliance. A supportive and inclusive community for coaches across Wales, we believe coaching is not a solo journey. It is strengthened through relationships, shared learning, and collective experience. If you are looking for connection, encouragement, and a place where you truly belong, you’ll find it here. Join us and invest in your coaching practice and connect to the coaching community in Wales.

0800 998 7904

amanda@universalcoachingalliance.org

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Amanda Morgan
UCA Cymru

Universal Coaching Alliance logo.
UCA Cymru Welsh dragon logo.

CONTACT US

We’re here to help with any questions or concerns you may have. Whether you need expert advice or would like an initial conversation about our services, pricing, or the options available, please don’t hesitate to get in touch. At Refreshing Law, what sets us apart from other law firms is that you’ll get to speak to an experienced employment lawyer right from the very first call.

02920 599 993

07737 055 584

lreynolds@refreshinglawltd.co.uk

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Lousha Reynolds
Refreshing Law

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Disability Duty of Care Employment Law Equality Act 2010 Health and Safety HR Lousha Reynolds Mental Health Neurodiversity Reasonable Adjustments Risk Assessment Sick Pay Stress

Stress at Work: More than just a bad day

Woman with head in her hands leans over a desk with a laptop in front of her

As we mark Stress Awareness Week 2026, we’re looking at the legal framework that governs mental health in the UK workplace.

Stress isn’t just a HR issue. It’s a significant legal responsibility. Whether you’re managing a team or navigating your own workload, understanding the boundaries of the law is essential for a healthy, compliant work environment.

1. The legal duty of care

Under the Health and Safety at Work etc. Act 1974, employers have a statutory duty to ensure, so far as is reasonably practicable, the health, safety, and welfare of their employees. This isn’t limited to hard hats and trip hazards. It includes mental wellbeing, too.

  • Risk Assessments: Just as you’d assess the dangers of a faulty wire, you must assess the risk of work-related stress.
  • The Management Standards: The HSE (Health and Safety Executive) outlines six key areas that, if not managed, lead to poor health and reduced productivity: demands, control, support, relationships, role, and change.

2. When stress becomes a disability

While stress itself isn’t a disability, the effects of prolonged stress, such as clinical depression or anxiety disorders, often meet the criteria under the Equality Act 2010.

An employee is considered disabled if they have a physical or mental impairment that has a “substantial and long-term adverse effect” on their ability to carry out normal day-to-day activities.

What this means for employers:

  • If stress triggers a disability, you have a legal obligation to make reasonable adjustments. This might include:
    • Flexible working hours or “soft” start times.
    • Redistributing certain tasks to other team members.
    • Providing a quieter workspace or more frequent breaks.

3. Avoiding a personal injury claim

If an employer is aware (or ought to have been aware) that an employee is struggling and fails to act, they risk a claim for negligence. For a claim to succeed, the psychiatric injury must have been “reasonably foreseeable.”

The Red Flag Rule: If an employee tells you they’re struggling, or if their performance suddenly dips alongside signs of burnout, the clock starts ticking. Ignorance is rarely a valid legal defence once the signs are visible.

4. Practical steps for Stress Awareness Week

To stay on the right side of the law (and keep your team happy), consider these three actions:

ActionPurpose
Wellness Action Plans (WAPs)A proactive tool for employees to share what helps them stay well.
Training for ManagersEnsuring supervisors can spot signs of burnout before it becomes a grievance.
Open CommunicationReducing the stigma so employees feel safe raising issues early.

Work-related stress is often a symptom of systemic issues rather than individual weakness. By treating mental health with the same rigour as physical safety, UK businesses can avoid costly employment tribunals and, more importantly, foster a culture where people actually want to work. This year’s campaign, led by the Stress Management Society, focuses on the theme #BeTheChange, encouraging small, consistent, and positive actions. We think that’s a great place to start.

CONTACT US

We’re here to help with any questions or concerns you may have. Whether you need expert advice or would like an initial conversation about our services, pricing, or the options available, please don’t hesitate to get in touch. At Refreshing Law, what sets us apart from other law firms is that you’ll get to speak to an experienced employment lawyer right from the very first call.

02920 599 993

07737 055 584

lreynolds@refreshinglawltd.co.uk

GET IN TOUCH

Lousha Reynolds
Refreshing Law

Categories
Duty of Care Employment Law Health Conditions HR Stress

Guest Blog | How HR can take a trauma-informed approach to support employees

Platfform Wellbeing's HR support services

All businesses have a duty of care to their employees and safeguarding their mental health is a fundamental part of this. April is National Stress Awareness Month and a time to reflect on the negative impact of stress in the workplace.

We all know that stress is one of the most common causes of long-term work absence in the UK but how much do HR professionals understand about the impact that trauma can have as a contributory factor to stress and work burnout?

It’s important to understand what psychological trauma is and how it can have a significant impact on an individual’s mental and physical health. Trauma-informed care is an approach that recognises the impact of trauma on individuals and seeks to create a safe and supportive environment for healing.

So how can HR take a trauma-informed approach to supporting employees through work stress and burnout?

Create a safe and supportive environment

Creating a safe and supportive environment is an essential part of a trauma-informed approach. This includes:

  • Establishing trust: Building trust with employees is essential. This can be achieved through open communication, active listening, and a non-judgmental approach.

  • Fostering a sense of safety: Employees need to feel physically and emotionally safe in the workplace. HR can ensure that the workplace is free from harassment, discrimination, and other forms of violence.

  • Providing choice and control: Employees need to feel that they have choices and control over their work environment. HR can provide employees with opportunities to give feedback, participate in decision-making, and have a sense of autonomy.

  • Empowering employees: Empowering employees to take control of their work environment and manage their stress can help them feel more confident and reduce the risk of burnout.

Offer resources and support

HR can offer resources and support to help employees manage their work stress and prevent burnout. This may include:


  • Counselling services: Counselling services can help employees manage their stress and cope with trauma.

  • Training and education: Providing employees with training and education on stress management and mental health can help them understand the impact of stress and develop coping strategies.

  • Flexible work arrangements: Offering flexible work arrangements such as hybrid or flexible hours can help employees manage their workload and reduce stress.

  • Peer support: Providing employees with peer support networks can help them feel connected and supported in the workplace.

In summary, taking a trauma-informed approach to supporting employees through work stress and burnout is essential for promoting employee wellbeing and preventing burnout.

HR can create a safe and supportive environment, offer resources and support, and empower employees to take control of their work environment. By doing so, HR can help employees manage stress and prevent burnout, leading to a more productive and healthier workforce.

If you would like to learn more about becoming a trauma-informed organisation, you can find further information on the Platfform Wellbeing website.

Platfform Wellbeing
Platfform Wellbeing is a commercial training, workplace wellbeing and counselling service aimed at organisations across the private, public and third sector. It offers kind, compassionate responses at times of distress and supporting organisations with creating cultures and teams than enable people to thrive. We are part of Platfform, a mental health and social change charity.

 

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Anna Denton-Jones Duty of Care Employment Law Employment Rights Act 1996 HR Mental Health Pay Sick Pay Stress

Are you entitled to withhold SSP?

View of the City of London at sunset

You’ve probably noticed wording in your sickness policy that makes it clear if employees don’t comply with your procedure, they risk the payment of Statutory Sick Pay (SSP).

It is not open to an employer to withhold SSP where the employee provides medical evidence from their GP late. For example, you may require the certificate to be given to you on day 8 of absence, and the employee might not get around to giving you a certificate until day 10.

An employer is allowed to not pay SSP if the employee has failed to notify them of the absence, and there is no good reason to cause the delay in notification. For example, the employee is supposed to notify you of their absence on the first day of incapacity – if they didn’t notify you and essentially were absent without leave for the first few days and told you on day 8, then potentially Section 156(2)(a) Social Security Contributions and Benefits Act 1992 applies. So, for example, if the employee had gone AWOL effectively for the first week and then telephoned in, the employer is entitled to withhold for the duration of the delay.

Employers may introduce something more onerous as a matter of contract. For example, that the employee has to report in sick by a particular time on the first day of their absence and thereafter at regular intervals. That cannot override the statutory scheme when it comes to SSP but if more generous contractual sick pay is available, such as payment for the waiting days when SSP doesn’t apply or payment of full pay or something more than SSP, then the employer will be able to follow what they have said in their contract and withhold the extra payment if the employee has not complied with the rules.

Under SSP rules, HMRC in its www.gov.uk page ‘Statutory Sick Pay: employee fitness to work’, states that “if an employer decides to stop payment of SSP, they should explain their decision to the employee”. The employee will be entitled to a written statement from the employer and can seek a formal decision on their entitlement from HMRC Statutory Disputes Payment team. You might like to refer to the ‘Stop Payment of SSP Section’ of that Guidance. There is an example letter to notify the employee that you will not be paying them.

There will be occasions where the employer has real reasons to believe that the person may not have been unfit for work. For example, they may have requested annual leave and that request has been rejected, so the individual then phones in sick. Clearly the employer would have to do as much investigation as they possibly could around the circumstances. For example, if the individual provides a doctors fit note, HMRC advises that that should be accepted as conclusive proof of incapacity for SSP purposes, even if there is very strong evidence to the contrary. The employer might need to get their own medical advice or to ask HMRC to arrange for the employee to be examined by the medical services team. Clearly that only works in the case of a health condition that is likely to be ongoing.

It might be possible to ask, for example, a GP who has provided a backdated sick note when their consultation with the individual was and providing evidence timing that the employee has been covering up them being perfectly well on the days in question. Evidence as to their activity from social media may also be relevant, eg. photographs of the employee swanning around Spain when the employee told the employer they were in bed and that they were so unwell that they couldn’t get up.

Anna Denton-Jones
Refreshing Law

 

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Alternative Dispute Resolution Anna Denton-Jones Communication Conflict COVID-19 Disciplinary Employment Law Grievance Investigations Return to Work Stress Victimisation

Why we might be seeing more conflict and mistakes

View of the City of London at sunset

You may have noticed some of the following since the pandemic:

• People getting more upset than “normal” over something relatively trivial.
• People having a very emotional reaction to something they are asked to do, for example, returning to the office.
• An increase in conflict in situations where previously this would have been less likely to happen and employees being less resilient.

There is a brain science explanation for all of this. We have at brain chemistry level, been living within an environment of constant and invisible threat for 18 months. During a situation of stress such as this, the limbic system goes into overdrive and more complex parts of our brain such as the prefrontal cortex are used less.

This all makes sense in an emergency: we need our brains to focus to enable us to deal with the threat. For example, I had somebody drive into the back to me recently at speed while I was stationary in the car. The limbic brain function enables you to calmly deal with the situation but in that state it becomes much harder for us to think rationally, deal with complicated decisions and we become error prone.

This might also explain why, if you are feeling that you are just trying to do something relatively straight forward that you have always done but for some reason it feels more challenging than previously. We overloaded the system. I always remember a junior doctor talking about how they coped with their very long shift working and all that their job brought with it but would burst into tears when they found that the toothpaste had run out. It’s a perfect illustration of the pressure on our system, suppressing the prefrontal cortex and yet reacting emotionally, losing our tempers more and being unable to talk ourselves down in the way we would normally.

Normally the prefrontal cortex is able to talk to the limbic system essentially telling it to calm down and behave more rationally but if we are stressed, tired or sick then that becomes more difficult. We know how exhausted everyone is saying they are, particularly those who have worked in the front line or who have had to step up in other ways to see their organisation through the last 18 months, we can see why normality is being impaired.

This is why everybody feels a bit on edge but can’t really articulate why – it is normal when you’ve survived some kind of disaster.

The brain is immensely adaptable and will figure its way through this phase. It can even be a good thing where people will grow as a result of the experience, with the majority returning to functioning as they did before and a small proportion effectively experiencing post-traumatic stress disorder. Researchers are even beginning to talk about the common outcome being long term resilience but for the meantime, what can we do?

We have to accept that a cohort of the workforce are feeling immense fatigue and have short levels of concentration or simply struggling to concentrate at all. We have to recognise when this is happening that it’s not necessarily a permanent state of affairs and that we need to provide support rather than go straight to performance managing out. It may even help to talk about this to get people to understand what is going on so that they accept their emotional state, rather than trying to fight against it. This reduces them being stressed about being stressed in the first place. It stops people dwelling and feeling increasingly negative. Dealing with what’s going on in a non-judgemental way can drag that prefrontal cortex back into the picture and give it a chance to quieten down the limbic system. If people are in a state of anxiety it can be quite easy to end up in a negative spiral where that becomes the dominant emotion.

When we are in a particular mental state we tend to dwell on the particular emotion that we are feeling and remember all of the other times that we have felt this way rather than all the other times when we haven’t felt this way. It may help people to understand that this is what happens and that dwelling on something more positive can help the brain chemistry.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Communication Duty of Care Employment Law Health and Safety Health Conditions Mental Health Risk Assessment Stress

What to do when you’re worried about someone — Suicide awareness

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Friday, 10th September was Suicide Awareness Day. By coincidence I ended up having the same conversation twice with two different organisations. In both cases, the employer had an employee who was on long term sick and where a pattern of contact with the employer had been established but they felt that something had changed. The lack of contact they were now experiencing was out character from the employee. In one case the employee had shared that they were having negative thoughts and in the other the employer was just concerned.

In such a case where efforts to speak with the employee are not fruitful, if you have any concerns then I recommend you act on them rather than ignore them. Our intuition is there for a reason.

The first port of call might be the next of kin that the individual has left with you. You don’t need to get into discussing any details about the employee or their absence, their health or anything like that: you can just remind the next of kin that they have been appointed by the employee as the next of kin and that you are worried about the employee because there has been a change in behaviour — are they okay? This is likely to prompt the next of kin to say that they will check.

The second port of call might be the GP. If you have the employee’s GP details which you are likely to do from the fit notes that they will have been submitting, you could contact the practice explaining that you have concerns and this is likely to trigger the practice then checking up on the individual. The GP will not be able to discuss anything about the individual with you but they will note if you are saying there is out of character behaviour and the fact that you have bothered to take the time to call.

Clearly you might be barking up the wrong tree entirely but for the sake of a phone call or two, if you are in any doubt, it is better than regretting not having raised a concern if there is something to worry about.

Anna Denton-Jones
Refreshing Law

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Absence Anna Denton-Jones Burnout Duty of Care Employment Law HR Mental Health Stress

Burnout and the risks for employers

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Last year the World Health Organisation recognised “burnout” for the first time in its classification of diseases. It defines “burnout” as “mental or physical exhaustion caused by excessive or prolonged stress and a syndrome resulting from chronic workplace stress that has not been successfully managed”. It highlights the three characteristics:

  1. Feeling of energy depletion or exhaustion.
  2. An increased mental distance from one’s job or feelings of negativity or cynicism relating to one’s job.
  3. Reduced professional efficacy.

For many people who were reading that definition they would be saying yes or would be ticking off the criterion, due to the pandemic, with the stresses and strains of the last year or so only adding to the problem.

Stress is normally a short lived thing or tied to a specific goal so is not harmful. If the stress feels never ending and comes with feelings of emptiness, apathy and hopelessness, it may be indicative of burnout.

A recent case involving a firm of solicitors that has been litigated through the Courts highlights the risk of employers not taking this issue seriously. In this particular case, the employee concerned was a high flyer – for a period of around 5 years he had been one of the most high billing or income generating fee earners at the law practice, being in a leadership position, in charge of one of the firm’s offices. Criticisms levelled at the employer included, failing to reduce his working hours or ensuring that he was taking his annual leave. He had been dedicating 15 hours a day to work and the employer faced criticism for not having picked up on that and done something about it.

It seems that when the condition began to manifest including the employee acting out a character and making an inappropriate joke which was then used as a disciplinary matter, the firm failed to put in place a structured plan for offering support. In particular, when the employee had 7 weeks’ ill-health, they didn’t take any steps to find out about the extent of his condition. If they had done so, they may have been more aware of his fragility and the problem that they were dealing with.

In particular, at the point at which he has tipped over into “burnout”, the firm had a duty to put their minds to how they could prevent the risk to his health that his job was causing. The problem is that the firm took the perhaps “usual” reaction of getting him to relinquish his management position. Indeed it was found that one witness had said that he should “drop back into midfield” and leave the captaincy to somebody else. The Judge in the case found that that was grossly insensitive. Of course the firm might have had genuine concerns over the impact on colleagues but there wasn’t really any meaningful communication around the issue or understanding of the workload issues or what was necessary.

These sorts of cases are going to be particularly relevant given all the evidence about people working from home, working greater hours, juggling all the other stresses that come with a pandemic and inadequacies in many cases of employers to be prepared to deal with these sorts of issues.

So what things can an employer be doing to prevent “burnout”?

  1. Actively encourage employees to take holiday, including those in senior leadership positions and create an environment where people are allowed to genuinely switch off, which will require senior leaders to lead by example in this regard.
  2. Reconfigure email so they send only during set hours.
  3. Encourage all managers to check in with the members of their team as regards workload. It is a culturally normally thing to happen for work to be juggled around between different people to alleviate the pressure points?
  4. Encourage employees to speak up if they are starting to feel overwhelmed, explaining that support will be available if they do, including the possibility of devoting extra resource to take on workload.
  5. Train managers to spot the signs when somebody is beginning to become overwhelmed and not cope and to not be afraid to intervene when they see that happening.
  6. Refer the employee to occupational health immediately for guidance on other measures that can be taken.
  7. Have an employee led position about what they think needs to happen – they know themselves best.
  8. At this stage, emphasise that any changes to job description or duties are temporary whilst you are supporting them to recover.
  9. Simple things can apply, such as permitting the employee to say no to new tasks.
  10. In any return to work/management plan, it will be useful to schedule regular breaks including identifying what activities the employee is going to be doing to help them reduce the feelings of burnout in terms of self-care and exercise etc.

If the medical condition the employee is suffering from becomes a long term thing then it could become a disability which is protected by the Equality Act, in which case the duty to make reasonable adjustments is going to apply. Where an employer has not tackled the issue early enough, if the employee goes through periods of absence and return to work with little changing, you can see how a pattern could be established that leads into disability territory.

In the particular case involved, the employer was potentially liable for the employees losses that resulted from his employment relationship coming to an end and not tackling the issue effectively.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Employment Law Employment Rights Act 1996 Health Conditions HR Return to Work Sick Pay Stress

An employee won’t attend Occupational Health

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Often employees will refuse to attend Occupational Health or to provide consent for the employer to write to their GP.  Sometimes they believe that this is a delaying tactic, sometimes they probably know that they won’t like the outcome or the information that will be provided, but where does this leave the employer?

If you’re writing to a GP or consultant who is responsible for the care of their patient, in the absence of the employee’s consent in relation to the Access To Medical Reports Act 1988, then the employer is stuck and unable to obtain information from that physician.  Sometimes employees don’t realise that in the absence of their co-operation, you will still be entitled to make decisions, for example about whether or not they are capable of performing the duties you engaged them to do.  In such a scenario sometimes by explaining to an employee that you will have to make decisions about them in a vacuum, given that they won’t consent, they change their mind and agree to your request.  An alternative for the employer in this scenario is to actually require the employee to attend an Occupational Health physician as, strictly speaking, the Access To Medical Reports Act won’t apply where the employer is asking for a one-off report because that medic will not have been (or be) responsible for the individual’s clinical care.  If the employee attends an appointment with such a doctor then they will have implicitly consented to disclosure to the employer of any report resulting from that examination.  (Kapadia -v- London Borough of Lambeth [2000])

In order to protect themselves, employers will often include a clause in their contract of employment that requires an employee to co-operate and attend a medic where the employer wishes for a report to be written.  Technically, an employee’s failure to comply with a reasonable instruction in this regard would be a disciplinary matter.  Unfortunately for the employer, failing to follow this reasonable instruction is unlikely to form grounds for dismissal as opposed to other disciplinary action such as a warning.  Even if there had been prior warnings in this regard, an employer is going to have to show that dismissal for failure to co-operate is within the band of reasonable responses as well as following a fair procedure in respect of the disciplinary in order to avoid any unfair dismissal claims.  Thus it would become central to such a case to know why the individual was refusing to co-operate and whether or not that was reasonable.

It is probably going to be safer for an employer, instead of going down the disciplinary route, to consider dismissal for incapacity.  If the employer has done all it reasonably can to obtain medical evidence and the individual continues to withhold consent, a decision to dismiss may well be within the range of reasonable responses (Elmbridge Housing Trust -v- O’Donoghue [2004])

When it comes to looking at fairness in such cases, the fact that the employer had an express contractual term will be useful.  It will also have been useful to have warned the employee what the consequences of failing to co-operate may be.

In obtaining an employee’s co-operation it may also be useful to explain to them that, if they are concerned about the contents of a report, they can provide limited consent.  For example, an employee might be worried about revealing information about past illnesses that are not relevant to their current condition.  The employer might, in these sorts of cases, agree to limit information to a certain time period or to confine reporting to the extent to which the employee is able to do their job.

Whilst it might be frustrating to have employees who won’t co-operate, being patient, making a number of attempts to obtain information and persuade the employee before making decisions in the absence of medical advice, and generally acting in a reasonable manner, is likely to put you in a favourable light.

Anna Denton-Jones
Refreshing Law