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Employment Law: Absence and Attendance at Work Q&A (Part 2)

View profile for Chris Amys
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Q: What happens if an employee fails to submit a GP’s Fit Note?

It is usual for employers to permit their employees to self-certify their absences for the first seven days. For absences longer than seven days, it is normal for a GP’s Fit Note to be provided.

If an employee fails to submit the requested documentation, such as a self-certification form or GP’s Fit Note, an employer could be entitled to withdraw SSP and Company Sick Pay until evidence of incapacity has been provided.

Furthermore, if an employee fails to continue submitting the requested documentation without a sufficient explanation, this could amount to an unauthorised absence.

Q: What should an employer do if the employee’s GP’s requests some adjustments in the Fit Note?

A Fit Note could include recommendations and/or advice from the employee’s GP, such as a reduction in workload. Although it is not paramount, it is advisable for an employer to take on board a GP’s recommendations and advice into account when considering the employee’s medical situation. An employer could discuss with the employee if and how any recommendations and advice could be implemented.

An employer is under no obligation to accept the recommendations and advice from an employee’s GP. However an employer will need to take into account its wider legal obligations, such as the duty to make reasonable adjustments if the employee is disabled.

Q: How should an employer implement an employee’s phased return to work?

In April 2010, an option was introduced for GPs to state an employee may be fit for work, either on a phased return to work, altered hours, amended duties or adaptations to the workplace.

If an employee’s GP has recommended a phased return to work for an employee who is on long-term sickness absence, an employer can allow an employee to work reduced hours to allow them to gradually get back their normal hours.

It is important to check the Contract of Employment to see whether an employee is contractually entitled to their normal pay while on a phased return to work. Furthermore, any change to an employee’s hours and pay of work may amount to a unilateral change to their Contract of Employment (albeit temporary) and therefore the arrangement may require agreement in writing by both parties before the phased return commences.

Even if an employer is able to implement the suggestions by the employee’s GP, allowing an employee back into the employer’s workplace could present a number of problems, especially from a health and safety perspective.

Q: Can employee return to work before their GP says they are fit to work?

As a GP’s Fit Note does not give an option for stating an employee is fit to work, there is a risk that if an employee recovers sooner than expected, an employee may request to return to work before the expiry of their Fit Note. This presents a number of problems for an employer, most importantly whether the employee is actually fit to return to work. An employer should consider undertaking a risk assessment and obtaining further medical advice before allowing a return to work.

Unless an employer is satisfied an employee is fit to return to work, the employer is entitled to refuse the employee’s request. However this could amount to a breach of trust and confidence and therefore each decision must be made on a case by case basis.

In relation to pay, if an employee is willing and able to return to work, but the employer is not satisfied the employee is able to return to work, then the employer is entitled to continue treating the employee as an individual on sick leave in terms of SSP and Company Sick Pay.

If you have any questions, please don't hesitate to get in touch with Sally Morris at sally.morris@mfgsolicitors.com or on 01905 610410.

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