What’s the answer? Returning to work on lighter duties

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Maria Ryan gets legal guidance this week from Helen Badger, employment law expert at Browne Jacobson and Chris Syder, head of employment at Clarkslegal LLP London branch on the considerations of offering alternative work where normal duties are no longer safe.

The question:
One of our employees, a mechanical fitter, has taken extensive absence following a shoulder operation some months ago. We have identified a number of lighter duties, such as conducting risk assessments, which he could perform until he is fully fit to return to his normal duties - can he refuse? If he can, is there anything we can do about it? I should mention we have an extremely generous occupational sick pay scheme, which does little to encourage people back to work, it's proving a bit of a thorn in my side! Can anyone offer any advice?

Maria Ryan

The answers:
Helen Badger, employment law expert, Browne Jacobson

Exactly how long an employer has to tolerate an employee's absence is always a thorny question, particularly when they appear to be uncooperative with alternative working suggestions.

The first action to take is to make sure you discuss the lighter duties in detail with the employee so they have a full understanding of your proposals. If they refuse to return in light of the amended job role then you need to discuss with the employee exactly why this is the case. You should then suggest corresponding with his GP to ascertain a medical view of the lighter duties, for which you will need the employee's consent. Assuming he agrees, then you should write to the GP setting out the proposed lighter duties and ask for his or her expert view as to whether these would be suitable for the employee.

If the GP believes the revised duties are appropriate then you would need to meet again to set this out clearly to the employee and advise that, in your view, it would be reasonable for him to return to work on those lighter duties. If the employee continues to be uncooperative and you are confident that the GP's advice accords with your proposals, then you would have to consider commencing disciplinary proceedings as a consequence of such behaviour.

Alternatively, if the GP supports the employee's view that the lighter duties are inappropriate then you would need to consider obtaining independent expert advice. Again the employee would need to consent and you would need to set out in detail the nature of the proposed lighter duties and the employee's concerns. If the advice turns out in favour of your position, then you are in the difficult situation of handling conflicting medical evidence. Provided you have consulted in full with the employee, the expert you have chosen has examined the employee and is sufficiently qualified to give the advice, then it would be reasonable to rely on this and you are likely to have reasonable grounds to require the employee to return or face disciplinary proceedings.

It goes without saying, this is a very delicate situation which requires careful handling, full consultation with the employee and openness at all times.

In the long term, you may need to look closely at changing your occupational sick pay scheme if it is proving so generous that it does little to encourage people back to work. Before doing so you need to consider whether the entitlement to sick pay is a contractual right, as opposed to a discretionary entitlement. If it is contractual, you would need to seek to obtain the agreement of all employees to revise the scheme. This process should include a period of detailed consultation with employees and/or employee representatives.

Helen can be contacted at: [email protected]

Chris Syder, head of employment at Clarkslegal LLP London branch

This is a classic example of the downside of a generous occupational sick pay scheme.

You should already have the benefit of a medical report concerning the extent of the employee's shoulder injury and hopefully a prognosis for a full recovery and return to work.

To encourage the employee to return to work, you will need to ascertain that medically the lighter duties are safe. Often light duties can hep with the rehabilitation exercises the employee will have to undertake. An opinion from the appropriate medical adviser is required. Be very mindful of the fact that depending upon the extent of his shoulder injury he may now be disabled and benefit from the protections provided by the Disability Discrimination Act.

Provided there is no medical reason to stop the employee undertaking light duties, you should meet with the employee and explain what light duties are available, how his health will be monitored, and an explanation provided concerning how this will affect his hours, pay and status. I am working on the basis that the light duties will be related to his full time mechanical engineer role so what he/she is being asked to do relates to their normal role.

If the employee refuses to return (perhaps because he is still entitled to full occupational sick pay) you need to consider your sick pay scheme rules. What is the contractual position regarding payment of occupational sick pay when he/she is fit for light duties? It is a very brave employer that considers any form of disciplinary action when an employee refuses to return from certified sick leave because he/she can undertake light duties or unilaterally insists upon a return to light duties whilst the employee is still certified sick. In our experience, a return to light duties works best when a return to full fitness is imminent, say, one to two weeks away, so the employer is in effect helping with a phased return to work.

We recommend you seek specific legal advice concerning what amendments can be made to your occupational sick pay scheme to avoid this situation happening again, such as reducing the period of full pay to incorporate a longer period of half pay.

Chris Syder can be contacted at [email protected]

HRZone highly recommends that any answers are taken as a starting point for guidance only.

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