An employee, who has been signed off work by a medical expert, would still like to come into work and do reduced hours. Esther Smith and Matthew Whelan advise on the consequences of this.
We have an employee who has had a minor operation and has been signed off work by medical experts for two weeks. However, the employee wants to be able to come into the workplace and do shorter hours if possible. What are the consequences for the employer in a case like this? For instance, if the employee works and then suffers physically because of this? Would the employer be liable?
Esther Smith, partner, Thomas Eggar
You should not allow an employee to work or carry out contractual duties when they are signed off as being unfit to work by a medical practitioner. You are right to be concerned about them suffering some further injury or damage as a result, as if this did happen you are very likely to be found to be in breach of your duty of care to that employee (and possibly others if they have caused damage or loss to other people) and it is also very likely that your insurance will be invalidated. This could be a very costly mistake.
If you want to try and facilitate an employee carrying out some work whilst signed off sick you should only ever contemplate doing so where you have express written confirmation from a medical practitioner that this is safe and advisable. If the employee is only signed off for a short period of time, then by the time that you get this clearance from the doctor the employee will probably be at the end of their certificate anyway.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar
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Matthew Whelan, solicitor, Speechly Bircham
You certainly should not let the employee return to work just because he or she feels well enough to do so or tells you they feel well enough. You need to consider the risk to that employee, other staff and indeed the business itself.
There are a number of risks if you let the employee return, including that this may invalidate any applicable insurance cover. You would need to check your policies.
There is an increased risk that you may be liable for any personal injury the employee suffers when they return, including the worsening of the current condition.
There may also be health and safety considerations. You mention the employee had a minor operation. If the operation was on the employee’s hand and that employee operated machinery there would be a clear health and safety risk in letting him or her return to work.
If the employee is disabled under the Disability Discrimination Act 1995 you need to consider your obligations under that act. For example, an employer is under a duty to make reasonable adjustments. This may be relevant in this scenario and in relation to the employee more generally.
In short, you need to investigate further before you make a decision on what to do. This would include thinking about getting the employee to return to their doctor to see if they think they may be fit to return, getting an occupational health report, conducting a health and safety risk assessment and checking insurance policies. If you let the employee return think about steps you could take to minimise the above risks.
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