Employers (and workers) have strict and onerous obligations to ensure the health and safety of their staff while at work.
In addition, disability discrimination legislation prohibits employers from discriminating against employees on the grounds of their disability, illness or injury in circumstances. Obligations under the disability discrimination legislation can require an employer to modify an employee’s job to enable the employee to continue to perform it whilst suffering from a disability.
Because of these obligations, various courts and tribunals have recognised that, in some circumstances an employer has a right to compel or demand an employee attend an independent medical examination so they can determine the worker’s fitness for their duties.
This right cannot be exercised arbitrarily. An employer can only require an employee to attend a medical assessment of their fitness for duties if there is a genuine and legitimate concern that the employee may be unfit to perform their duties.
If there is a genuine and sincere issue or concern and an employer requests that an employee attend an assessment, any refusal by the employee to do so may expose them to the risk of disciplinary action up to and including dismissal. There have been unfair dismissal cases heard by the Fair Work Commission in which workers who refuse to attend medical assessments at the request of their employer have been dismissed and the relevant tribunal has upheld the dismissal.
However, employers always have an obligation to provide “procedural fairness” in these circumstances. That requires the employer to give the employee adequate notice of the medical appointment that they require them to attend. The doctor who is conducting an assessment should also be provided with a thorough description of the duties that the worker is performing, to enable them to assess appropriately whether or not the worker’s disability, illness or injury will affect their ability to undertake those duties.
"...employers always have an obligation to provide “procedural fairness” in these circumstances."
Furthermore, procedural fairness also requires that the employee be allowed the opportunity to secure their own medical opinion if they do not agree with the opinion provided by the employer’s doctor.
So although an employer does, in certain circumstances have the right to require an employee to attend a fitness for work assessment with a doctor of the employer’s choosing, the employee also has the right to secure their own medical opinion.
If you have an, injury or illness and your employer is suggesting that you may be unfit to perform your duties, you should seek legal advice from a lawyer experienced in employment law to ensure that your rights are protected.