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MILS HR Update: Employee Fit Notes And Return To WorkBack

MILSLogo2“My employee, who is a technician, has been off work for two weeks now with a bad back.  He has now turned up this morning with a fit note saying he may be fit for work with adjusted duties.  He is telling me I have to make the adjustments and he will be paid full pay as he can’t afford to be off on SSP.  Is he right?”

Notes from GP’s are not supposed to be a definitive instruction that the employer must allow the employee back to work.  An employee can obtain a note that says they are not fit for any work or as in this example, a note to suggest that they may be fit for some work if there are adjustments.

As an employer you should discuss with the employee what their job entails and whether or not you can in fact practically and on business grounds make reasonable adjustments  (remember this may just be on a short term basis) to allow the employee back into work.  This is ultimately at the employers discretion and unless you are being completely arbitrary or unreasonable, if you can’t agree on the changes suggested or you think you cannot make reasonable adjustments to the job (because for example a health and safety risk or a significant disruption to the business or customers or other employees) 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 be back on SSP if that is what his contract entitles him to.

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

That is of course unless 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). If that is the case you are required to make reasonable adjustments in order to assist the employee back to work.  A failure to consider any reasonable adjustments that would have allowed the disabled employee back into work can help form the basis of a claim for disability discrimination.  The risk for the employer is therefore far less if the medical condition is a short-term matter not likely to qualify under the Act.

Andrew Macmillan, Solicitor, Motor Industry Legal Services

Posted by Sue Robinson on 15/04/2016