Here are a couple more of the questions – and our outline answers – following our recent webinar on Managing Sickness Absence.
What advice would you give where an employee wants to return to work but the employer does not think they are able to?
If an employer has concerns about an employee’s fitness to return to work, the first step should be to obtain medical advice (usually from your own medical advisers in the first instance) to help you determine this. This is most commonly an issue for mental rather than physical health conditions, where the condition itself may be leading the employee to a distorted view of their own fitness. If that condition has led to difficult behaviours towards colleagues before the absence, the employer may also be nervous about a repetition and so may be far more cautious about a return than would be the case for a physical ailment. An unquestioning acceptance of the employee’s fitness to work could create later liability if a premature return leads to a relapse or some claim by another employee who is harmed as a result.
If an employee is willing and able to return to work and the medical evidence supports this, then the employer should usually allow the employee to return, putting in place any necessary support to facilitate this. Failing to do so could amount to a breach of trust and confidence entitling the employee to resign and claim constructive dismissal. If reasonable adjustments should be made to help the return and aren’t, that may also be disability discrimination. It could also amount to a breach of contract if the employee is not paid during any continuing period of absence at the employer’s insistence, as an employee is usually entitled to their full pay if they are willing and able to work.
If the medical evidence is that the employee is not fit to return, then an employer will usually be entitled to require the employee to stay on sick leave until the medical position changes. In which case, the employee will remain entitled to receive sick pay in the usual way.
The sensible approach would be to obtain the necessary medical advice and then to sit down with the employee to discuss it and explore the position in detail (including a rehearsal of the employer’s particular reservations), with the aim of reaching a mutual agreement on next steps if possible. That may include a trial period or initially reduced responsibilities or hours/days. Talk first, then decide.
How should we deal with an employee who says they are fit to work from home but unable to return to the workplace due to health issues making commuting unsafe or more difficult/challenging?
As we explored in the answer above, when discussing pretty much any aspect of a return to work it is very important that you obtain medical advice (usually from your own advisers in the first instance) to help you determine whether the employee is fit to return to work, on what basis and whether any adjustments should be made to facilitate this. In other words, you should not rely simply on what the employee is telling you, particularly if that information might be seen as in any way self-serving (such as seeking the ability to earn a full salary without the drudgery of commuting, as here).
If we assume for now that the medical advice supports the employee’s contention that travelling to work will be more difficult/challenging because of their health, then it would be appropriate to consider whether any arrangements could be put in place to overcome this. This may include allowing the employee to work from home some or all the time, but it could also include other adjustments such as allowing them to work more flexible hours, e.g. avoiding peak travel times. It is also important to determine whether these challenges are likely to be short-term or permanent and most importantly, whether the employee is in a role which is compatible with material WFH. If they are not, then the other issues fall away, since there is nothing in the law which requires the employer to live with or create arrangements which just don’t work, even if the employee is fully recognised as disabled. These are all the sort of issues that should be addressed in the medical advice and in discussion with the employee. It is very important to discuss matters with the employee and be seen to obtain their views and input on any medical advice.
Remember that if the employee has a disability under the Equality Act 2010 then the employer may be under an obligation to make reasonable adjustments in certain circumstances. In London Borough of Hillingdon v Morgan [1998], for example, the EAT held that an employer’s failure to allow an employee who had become disabled to work part-time from home on a temporary basis to assist her transition back to full-time employment meant that it had also failed to comply with the duty to make reasonable adjustments. Given the size of the employer’s organisation, it could have provided the employee with a gradual reintroduction to work over a couple of months to facilitate her return to full-time work.
If you missed Part 1 of this series, it’s available to read here.
