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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 47631
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I have been on sick leave for 8 weeks, returned to work 2 weeks

Resolved Question:

I have been on sick leave for 8 weeks, returned to work 2 weeks ago on a "Phased Return", however, no return plan was ever set up and I was told by HR that I would be on full-pay even though I would be working less than normal hours. My Fit Note said this should be over a 4 weeks period "or until felt well enough to increase the hours". I said I wanted to return to full-time working as of Monday (2 weeks earlier than when the Fit Note expires) but I have a confirmatory letter from the GP saying he is happy for me to do this. My company only told me on the Tuesday of my second week back that they were stopping full pay as of that day and I would receive 75% salary for the Tuesday thru' Friday of that week. Now I have been told I will have to work from home one day a week for 4 hours, at the office 4 days a week for 4 hours each day (paid only for working hours) and this will be reviewed "monthly". Can I be forced to agree to this?
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones : Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How long have you worked there for?
Customer:

5 years

Customer:

Are you there?

Ben Jones :

Apologies for the slight delay, I experienced some temporary connection issues earlier on. All seems to be resolved now so I can continue with my advice. What does your contract entitle you to in terms of sick pay?

Customer:

It is not a case of sick pay, it is a case of whether, after returning to work, on a so called phased retur,n suggested by the HR department, which was said to be on full pay, it has now been put to me that full-pay was only for the first week (no actual detail of how long any sort of pay would last was given) and

Customer:

sorry sent last message before completed!

Customer:

Anyway, HR said phased return on full pay, but would need Doc's cert to confirm, got that for 4 weeks, then after return, told fullpay only for 1 week plus first day of second week!? then on 75% pay until end of week, then only paid to work for 4 hours per day thereafter. Then get email saying I have to work from home 1 day a week for 4 hours, attend work for 4 days a week for 4 hours, only paid for working hours, and this will be "reviewed" monthly! Basis for all this fit to work note, agreed between me an doc when told full pay for phased return, it says, 4 hours a day initially until feel able to do more. When I said I wanted to go back to full days work, told no you have to do the 4 hours a day reviewable on a "monthly" basis. IS THIS LEGAL?

Ben Jones :

Whether you are entitled to full pay for phased return to work would depend entirely on what your contract says. Unless there is something specific in the contract, how much pay the employee should be paid during a phased return to work is a matter of agreement between the parties. It is common for the parties to agree a pro rata rate of pay for the work actually done. It is unlikely that, absent an express agreement, the employer has a duty to pay full pay for partial performance of the contract. The issue here is that you were promised full pay but that was never specifically agreed as applying during the full period of phased return so it is more an issue of miscommunication rather than an illegal act.


 


If you were initially signed off sick and the fit note covered you for a specific period of time, then if you later decided that you are fit to return to work and wished to do so before the end of the fit note period you would need to go back to your doctor to have the fit note revised. The employer can prevent you from coming back to work or on full duties until either the fit note has expired, or you have provided a revised fit note allowing you to work without any restrictions. If you have received formal confirmation by your doctor that you are now fit to work and have informed the employer about this, then they cannot prevent you from coming back to work and cannot decide not to pay you full pay any longer as they are not the ones that can form a medical opinion on whether you are fit for full duties or not.


 


If they believe that you are still unfit to return, even if your doctor says you are, then they can ask you to attend an independent occupational health specialist to provide a second opinion and take the matter from there.


 


At any point if you are not happy with the way you are being treated, you can challenge the employer’s actions by going down the formal grievance procedure, which would prompt an investigation and a formal procedure to try and resolve this.

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