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MILS Case StudyBack

MILSLogo2Fit notes and adjusting duties

 “My employee has been off work for two weeks now, on SSP, with a bad back.  He has now turned up this morning with a G.P. ‘fit note’ saying he may be fit for work with adjusted duties.  He is telling me I have to make the adjustments and he should be paid full pay. Is he right?”

The law

An employee can obtain a note that either says (a) they are not fit for any work, or, as in this example (b) a note on which the box is ticked to suggest that they may be fit for some work, if there are adjustments.

Fit notes from GPs indicating that the employee could come back with adjusted duties are not supposed to be a definitive instruction that the employer must allow the employee back to work.

As an employer you should discuss with the employee what the job entails and whether or not you can adjust the job reasonably (remember this may only be on a short term basis) to allow the employee back into work pending a fuller recovery. Reasons for not being able to do so could include; health and safety of the employee, or others, and/or commercial disruption that would result from any suggested changes. Depending on the physical ailment and the nature of the job, you may or may not be able to adjust.

This is ultimately at the employer’s discretion and, unless you are being completely arbitrary or unreasonable, if you can’t agree on the changes suggested and you think the job can’t be reasonably adjusted you can treat a fit note as if it says your employee is not fit for work.  Accordingly the employee above would not be entitled to return on full pay, but would be back on SSP (or whatever contractual entitlements apply when he/she is off sick).

The situation above would be different if the employee presented themselves fit for work, any fit note having expired.  In those circumstances if the employer doesn’t think they want them at work on medical grounds, but there is nothing from the doctor, then the employee would have to be suspended on full pay pending some medical evidence.

Beware Disability Discrimination

Remember also however in the above situation, particularly if there is a long term condition that may constitute a disability under the Equality Act 2010 (this is a condition that has lasted or is expected to last more than 12 months in total and has a substantial adverse effect on day-to-day activities) then making reasonable adjustments to allow an employee back to work is one of the requirements on employers under the Act.

If an employer unreasonably refused to look at adjustments, but there were easy adjustments that would have allowed the disabled employee back into work, that can help form the basis of a claim against the employer.  The risk for the employer here is far less if the medical condition is a short-term matter, not likely to qualify under the Act.

An alternative job?

There is no obligation on you to create an alternative role, if there is no economic or commercial need to do so.  It is however something employers can consider if they want to assist employees back into the workplace with the employee’s agreement. If there is something suitable and alternative that the employee could usefully do on a temporary basis until they are fit for their normal job, then the employer would not be criticised for seeking to offer such work to facilitate return to full duties in due course.

 

Andrew Macmillan

Solicitor,

Motor Industry Legal Services

 

Posted by Sue Robinson on 24/03/2016