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Ask the expert: Working if signed off by medical expert


Ask the expertAn 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.

The question:

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?

Legal advice:

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.

Matthew Whelan can be contacted at [email protected]. For further information, please visit Speechly Bircham

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One Response

  1. Sick notes can be ignored
    As someone who is keen to help employers reduce absence it is infuriating to see lawyers such as Esther Smith give advice which is simply wrong. All the time common sense fails to prevail we will never reduce absence levels in this country.

    There seem to be two ‘Urban Myths’ and both are causing unnecessary absence.
    First is the legal status of the sick note, which many think is sacrosanct and once issued, can not be challenged. The other is that company insurance policies can be invalidated if an employee returns to work when they have been given a sick note by their doctor.

    Let us be clear; the Med 3 (sick note) is a certificate given by a GP to their patient for social security and statutory sick pay purposes only. It is written to the patient and not the DSS or employer and is simply advice that in the doctor’s opinion, the employee should refrain from work.

    HMRC guidance to employers paying SSP merely states that ‘a doctors statement is strong evidence of incapacity and should usually be accepted as conclusive unless there is evidence to the contrary’.

    It follows therefore that there is nothing to prevent an employer from helping an employee who wants to return to work, even if a dreaded sick note has been issued by a doctor.

    The questioner does not tell us what was wrong with the employee or what their job is, however if the employee is taking strong drugs and is handling dangerous machinery then the employer should get them back to work doing something that is not potentially harmful to them. On the other hand if they have had a minor operation and have a ‘normal’ job get them back as soon as possible, just keep a check on the individual for a day or two to ensure he/she really is well enough to be at work.

    The above is a simple risk assessment that should always be taken and the decision is one that can then be mutually agreed between the employer and employee.

    Please remember that it is generally accepted that the beneficial effects of work outweigh any risks of work and should therefore be encouraged.

    The second urban myth is that a company insurance policy can be invalidated by the early return of an employee with a sick note. I assume that this is supposed to refer to an Employers’ Liability insurance policy, the whole point of which is to protect employees from the financial consequences arising from an injury at work for which the employer is responsible. To think that these policies can be invalidated when the cover they provide is a legal requirement is ludicrous and certainly a fit employee returning early to work having ignored a doctors’ advice will not do so.
    Dudley Lusted
    Head of Corporate Healthcare Development
    AXA PPP healthcare

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