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HR | Employment Law | Health & Safety
working whilst signed off sick

Working Whilst Signed Off Sick – Is It Allowed?

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If an employee is asking to return to work early whilst signed off sick, you might be wondering whether this is allowed. Although working whilst signed off sick is legally permitted, there are some important considerations that you should make before allowing them to do so.

In this article, we’ll talk you through everything you need to know about employees returning early from sick leave. We’ll explain your obligations as an employer, as well as the legal risks that you may face by allowing an employee to return from sick leave early.

Can An Employee Return To Work Before Their Sick Note Ends?

The NHS website states that an employee can return to work as soon as they feel able to, providing they have the agreement of their employer. This may be the case if the employee has recovered sooner than expected from their illness or injury, or if the employer can make adjustments to enable the employee to safely return to work sooner.

However, before an employee can return to work, a risk assessment should be completed by the employer. This should identify any adjustments that need to be made to enable the employee to return to work safely, without compromising their health.

If suitable adjustments cannot be made to enable the safe early return to work, the employer should not agree to the return to work, and the employee should remain on sick leave until their sick note ends.

Need advice on managing employee sickness absence?

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Does An Employee Need A Fit For Work Note To Return To Work?

In the past, employees could get a ‘fit for work’ note from their GP to prove their fitness to return to work. However, this is no longer the case, and ‘fit for work’ notes are no longer available from GPs.

If a doctor needs to reassess a patient to check their fitness for work before they return, this should be stated on the original certificate of sickness.

Some companies have a policy to state that employees need to be declared fit for work by a doctor before they are able to return to the workplace. This is not a service that is offered by the NHS, so companies will need to employ the services of a private occupational health specialist or GP to do this.

Can An Employer Ask An Employee To Work Whilst On Sick Leave

Can An Employer Ask An Employee To Work Whilst On Sick Leave?

When an employee is on sick leave, the business may notice some disruption as their work needs to be covered. This can also lead to additional expenses for the business if a temporary member of staff needs to be hired to cover. It’s only natural that employers wonder whether they can ask an employee to work when they are on sick leave.

There is no law that prevents an employer from contacting their employee during sick leave. In fact, it’s a good idea for employers to keep in contact to prevent the employee from feeling isolated and to ensure their wellbeing.

However, employers have a duty to ensure the health, safety and wellbeing of their employees. Asking an employee to return to work when they have been signed off by a doctor is likely to compromise their wellbeing. If a return to work resulted in a detriment to the employee’s health or wellbeing, this could result in a legal claim being made for damages, so it’s important to take caution when considering asking an employee to work during sick leave.

Need advice on managing employee sickness absence?

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Risks Of Allowing An Employee To Return To Work Early

Although it can be tempting to allow an employee to return to work early, there are some risks that you need to be aware of before making your decision.

The main risk is that returning to work against medical advise could aggravate the illness or injury, leading to a longer recovery period. If the employee feels pressured to return to work, and this premature return leads to their recovery being compromised, you could find yourself being sued for damages as a result.

Not only is there a legal risk, but there’s also the risk that your employee might end up needing more time off work if they try to return to the workplace too soon. This is most common with instances of work-related stress, where the employee feels like they need to return to work but this causes their condition to worsen and leads to more time off in the long run.

If the employee feels that they have been pressured to come back to work, they may feel like they have no choice but to resign from their position. This could then lead to a claim being made for constructive dismissal.

It’s essential that you avoid putting any pressure on your employees to return to work before they are ready to avoid any potential legal claims. When your employee does feel ready to return, it’s important to carry out a risk assessment to establish whether any adjustments are required to enable them to return to work safely and minimise the likelihood of any further absence.

How To Support Employees Returning After Long Term Sick Leave

How To Support Employees Returning After Long Term Sick Leave

Returning to work after an extended period of absence can feel like a daunting prospect for employees. Luckily, there are things that you can do to make their return to work easier and to help them to get back into the swing of working life.

Here are some of the ways in which you can support an employee who is returning from long term sick leave.

1.     Return To Work Interview

Although a return to work interview is not a legal requirement, they are highly recommended. This does not have to be a formal interview, it can simply be a quick chat between the employee and their line manager or an HR representative to find out how they can be supported to return to work.

During the meeting, ask open ended questions to encourage the employee to discuss their absence if they feel able to. However, you should not pressure them into discussing personal medical information unless they volunteer the information.

You’ll also be able to discuss the plans for their return to work. This might include updating the employee on anything that has happened while they have been out of the office and asking what support they need in preparation for their return to work. This could include making reasonable adjustments or making a referral to Occupational Health if required.

Whilst a return to work interview might feel like a formality, it’s a great way to open the channel of communication with your employee and to agree on a plan for a return to work that works for both the business and the employee.

2.     Make Adjustments

The Equality Act states that reasonable adjustments should be made for employees that have a disability. So, when an employee is returning to work after a period of sick absence, it’s important to find out whether there are any adjustments that could be made to facilitate their return to work and to avoid any future problems.

Reasonable adjustments could include altering the workstation, changing their working hours (for example allowing a later start to the day or more breaks to be taken) or a change in their working duties.

To find out what adjustments might be required, you can speak directly to the employee. Alternatively, you could ask for advice from Occupational Health or a doctor, who will be able to advise you of any adjustments that could make the employee’s return to work easier.

3.     Consider A Phased Return

After an extended period of absence, a phased return can help an employee to return to work more gradually, slowly building up their hours or duties. This can help to ease the employee back into working life, as well as reducing the risk of their illness or injury reoccurring.

A phased return to work can take many different forms, including reduced hours or lighter duties. A plan should be put in place to decide how long this phased return should last for and when a review should take place.

4.     Communicate

The most important key to success in any return to work is communication between the employee, their line manager and HR. This means clearly communicating plans before the return to work takes place and having regular review meetings to ensure that the employee is coping well with their return to the workplace.

Need advice on supporting employees returning to work?

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Can An Employee Request A Phased Return To Work?

Phased returns can be a valuable tool in managing a return to the workplace after long term sickness absence. Whether it’s reduced hours or lighter duties, a phased return enables the employee to gradually build up to their usual job role at a pace that doesn’t hinder their recovery.

A phased return to work can be requested by the employee, their GP or an occupational health specialist. It can also be suggested by the employer as a way to ease the employee back into their job role slowly.

It’s best practice to set out your return to work procedure within your employee handbook, or as part of your absence policy. Within this, you can explain the process that should be followed when requesting a phased return to work. This will provide clarity to employees, as well as ensuring that a fair and consistent process is followed on every occasion.

Is A Return To Work Interview A Legal Requirement

Is A Return To Work Interview A Legal Requirement?

Many organisations choose to offer return to work interviews to employees who have been on sick leave. They may choose to offer this to all employees who are returning to sick leave, or only those who have been off sick for an extended period of time.

It is not a legal requirement to conduct return to work interviews after sick leave, but they do offer many benefits to both employers and employees, so it is always recommended to hold return to work interviews, especially after periods of extended absence.

During a return to work interview, the employee has the chance to discuss their absence with their line manager or a HR representative. They can raise any concerns at work that may have contributed to their absence and discuss any adjustments that may help to minimise their absence in the future.

Supporting your employees in their return to work and offering any reasonable adjustments can help them to feel confident and supported in returning to the workplace. This can be highly beneficial for their wellbeing.

Return to work interviews can also help to deter non-genuine absences, as employees are aware that they will be asked about their absence upon their return. This can help to reduce your company absence rates, ultimately saving your business money.

In Summary

Having an employee on sick leave can be inconvenient to the business, but it’s important that they are allowed the time to recuperate in order to avoid further time off work. Whilst employees are able to return to work before their sick note ends, it’s important that you conduct a full risk assessment before allowing an employee to return to work early to ensure that it is safe to do so.

When an employee returns from long term sick absence, communication is key. It’s a good idea to discuss openly with the employee whether there are any adjustments that could be made to make their return to work easier and reduce the likelihood of a recurrence of their illness or injury.

We hope that this article has given you a better understanding of the legal stance when it comes to working whilst signed off sick, as well as other factors that you should consider before facilitating an early return to the workplace. If you need any further information, don’t hesitate to contact us!

Looking for more information on managing employee sickness absence?

Fill out our contact form or call us on 01244 893776

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About The Author.

James Rowland

James Rowland

James is the Commercial Director at Neathouse Partners. He is responsible for all Account Management, Sales & Marketing within the company. Having gained a BSc in Psychology and further study for his post-grad Law degree, James embarked on his legal career in 2014. Since then, he has become an Associate Director at a national Employment Law boutique, studied for a Masters in Marketing, and as of 2018, been a Director at Neathouse Partners. Outside of the office, James is a keen cricketer, playing very badly (he calls himself a Batsman but averages single figures) in the Cheshire League for Nantwich CC. He also loves watching his childhood football team, Crewe Alexandra, and is an avid lover of cinema (his favourite film being Pulp Fiction). Feel free to connect with James on LinkedIn.
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