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Unsuccessful Return to Work

Hi all, 

We recently had a member of staff return to work after long-term illness. A meeting was held prior to their first day and a phased return to work was agreed - reduced hours with the view that this would gradually be increased, dependant on the employee's condition. 

The possibility of increasing hours was discussed after a couple of months in but the employee's GP advised that this was not possible. The employee was therefore told that, since part time roles are not offered in the business, their contract would be terminated on the grounds of capability. 

This was all confirmed to the employee in writing and they were offered 14 days to appeal. The employee did decide to appeal (after the deadline), on the grounds of discrimination. 

What would be the best course of action to take here? Are we obliged to investigate a late appeal? I'm conscious that the individual has three months to take their claim to an Employment Tribunal, if they wish to. 

 

Any advice would be greatly appreciated!

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Replies

  • Hi Emma,

    What were the reasons the employee could not increase or return to full contractual hours? Is this employees medical concerns a disability?

    The capability process is long, but the business should show that they have made reasonable adjustments and have exhausted all other options, such as redeployment,or flexible working, before coming to the conclusion of terminating the contract.

    Was an Occuaptional Health report obtained to better advise the business on workplace recommendations or adjustments?

    I would reccomend you investigate regardless of the 14 day appeal for best practice.

    Hope this helps,

    Renu

  • Hi Emma,

    I would advise best practice would be to show flexibility and investigate regardless of the fact the employee appealed after the 14 day period. I would again explore the reasons behind the employee being told part time working couldn’t be offered. Did you discuss the possibility of extending the phased return to work? Making any reasonable adjustments? Was the message delivered to the employee clearly the justified business reasons as to why they couldn’t be considered for flexible working? Was an occupational health report considered? Or even a transfer into another department?

    I would be inclined to see if the business has applied a flexible considered approach to the employee, have they exhausted all options to allow the employee to remain in employment.

    Hope this helps. Good luck.

    Kay

  • Hi Emma, 

    We were in a similar position a while ago and were advised by our HR consultants to go through with the appeal even though it was late. If the case does go to mediation/tribunal it will reflect better on you as a company if you've been flexible and gone a bit further than neccesary to allow the employee to have his/her say. 

    A couple of questions- does the employee's illness amount to a disability? Did you/your employers consider and discuss the posibility of offering part time hours (thereby rethinking company policy) or discuss other reasonable adjustments such as flexible working, working from home etc.? If so, were those discussions and their outcomes documented? Does the employee fully understand why the company cannot offer part-time contracts? And is the reason because of the type of work you do, for example, or simply because you prefer people to work full time? 

    Best wishes, 

    Chrissy

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