The question
One of our sales staff has recently returned to work after an operation on their ankle. Pins were removed and they were told that they could drive after one week.
Three weeks later, however, they were still unable to do so as it was too painful. We advised them to go back to their doctor and they have been signed off for another week to rest.
The staff member wants to return to work but not drive. But I am concerned that we would not be fulfilling our duty of care if we allowed them to return on this basis. The doctor has produced a note that says they are unfit to work. What is the legal position here and what should we do?
The legal verdict
Adam Crudge, solicitor at Thomas Eggar
Yes, potentially you would be in breach of your duty of care if you allowed your employee to return to work. If they are certified as unfit to work and you allow them to do so knowing this, in the event that they suffer further harm, you would be liable for that harm, and in breach of your duty of care to that employee.
It is also more likely than not that any insurance cover that you have would be invalidated by allowing the employee to work when certified as unfit.
If you wish to allow them to return to their duties while signed off sick, you should seek clearance from their GP that it is acceptable. In this case, the doctor may say that the employee is fit to carry out duties while at work, but if not, you should not allow them to return.
Adam Crudge is a solicitor in Thomas Eggar‘s business services team.
Adam Partington, solicitor at Speechly Bircham
Letting the employee return despite a doctor’s note stating that they are unfit to work raises a number of potential issues, including the fact that you may be inadvertently putting the staff member or other people at risk, or possibly invalidating your compulsory liability insurance.
You should speak to your insurer to make sure of your position in this respect.
In the first instance, you could perhaps ask the employee to clarify with their doctor whether the intention had been to say that they were unfit to undertake any aspect of their role. It may well be that the staff member is fit enough to do some work.
Depending on the seriousness of their condition, you could also consider obtaining an occupational health report to help identify what you can do to help facilitate a safe return to work and identify what the individual can and cannot do. This approach may not be appropriate if the employee’s return to full fitness is imminent, however.
It is always sensible – as well as a legal requirement – to carry out a risk assessment based on the information provided by occupational health professionals and/or the employee’s GP.
This assessment will help to identify what it was in your workplace that caused harm to the individual and whether you have taken enough precautions or should do more to prevent it.
Naturally the matter should be handled sensitively and, in the event that you cannot accommodate the employee’s immediate return to work, you should explain the reasons for this decision and provide a plan of action (for example, based on your occupational health recommendations).
Adam Partington is a solicitor at Speechly Bircham LLP.
One Response
Doctor’s note
The current "Statement of Fitness for Work" notes already allow the GP to say that the employee may be fit for work if duties are modified.
There are two boxes – one saying "You are not fit for work" and the other saying "you may be fit for work taking account of the following advice" and one of the following advice options is ‘amended duties’. Given these inbuilt options I would have thought that if the GP has not made any suggestions then they think the employee is not fit for work.
Of course the employee can always return to the GP and ask for their opinion about the wisdom of returning to work with amended duties, getting a new doctor’s note to reflect any changes in advice. However, I might ask myself whether the employees wish to return to work is driven by financial necessity (or even boredom at home?) rather than whether it is a wise course of action.