Hi. I'm after a bit of advice please. Does anyone know the legalities around an employee who says they are fit to be at work, against an employer who believes they are not?
An individual has recently been through an extremely difficult time in their personal life and on top of this has just last week had the sudden loss of their partner. The employee wants to continue working but external agencies have advised that she take some time out and don't advise her working for a couple of weeks at least. However, this was not GPadvice and she has not seen her doctor. It is my belief that if an employee wants to work then we cannot stop them, if they say they are fit to do so as we cannot prevent them from earning. What steps should the company take to do the right thing for the employee and its vulnerable elderly service user group? Is there any way that they can be denied work based on the external advice received?
Also, they have been employed by the company for approx 3 weeks and there were some concerns that had not been addressed as they have been absent from the workplace. However, it was looking likely that their employment may have been terminated. I understand that this discussion will still need to be had with them but is it as simple as continuing with this if they say they are fit to be at work?
I look forward to your comments.
Natalie
Replies
Hello Natalie,
If the fit note has expired then the company cannot stop an employee from returning to work. On the other hand, if the note is still in date, then you have every right to obtain professional medical advice before the individual returns as you have genuine concern for the individual’s welfare.
You mentioned that you have obtained advice from an external agency - Is this OH or information provided by the employee? If the advice was from your organisation's OH then any advice provided by them should supersede any other advice provided.
Depending on your attendance at work or sickness policy, as a duty of care, I would recommend that you conduct a welfare meeting with the employee, from that meeting you can obtain and clarify things in more detail to help you understand why they are wanting to return to work so soon. Discuss the concerns you have. It could be that the employee may just want some normality back in their lives as opposed to just staying at home.
Remember the main reason for referring an employee to OH is to help HR/Management resolve a situation where an employee’s health might be affecting their fitness to carry out their job. Is the role safety critical? the company need to be able to make a sensible decision in the interim until they have carried out reasonable steps to assist the employee regardless of the length of time they have been with the company, they are still an employee.
Hope this helps.
Vanessa
Hi Natalie
There are many complexities to this. Did the employee start work and then go off? Who are the external agencies (OH?). Has anything been communicated to the employee about being dismissed? Is there any mental health condition that could be long term? More information would be needed to give proper advice but normally if there is dispute between the employee beoeiving they are fit to resume work and the employer saying they are not, the employer would send them home (on full pay) whilst an OH review is organised. They could be allowed to work with supervison if a risk assessment is carried out and controls are in place (depends on their work).
I don' t mind trying to help if you can provide more information.
Theresa