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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 48163
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Hi, Im in the fire service and have been signed off sick by

Resolved Question:

Hi, I'm in the fire service and have been signed off sick by the g.p for a month and a half with a torn muscle. The treatment was basically to rest up with small movements and to take two lots of medication, one of which is very strong painkillers. Now my employer is talking about making me go back to work for light duties, of which I can't do much at all, send a few emails, no driving no lifting etc. so the benefits of going in 5 days a week are minimal. However the main problem with this is that I live aXXXXXfrom work, and I cannot drive on the medication I need to be taking. So to get to work I have in total 4 taxi rides and 4 train journeys to get to my station. In total aprox 5 hours travelling, which is not going to assist my injury to repair by quickly at all. My intentions are to get back to work as soon as im fully fit,as i love my job. But i am very aware that going back before fully repaired could result in a permanent injury and me loosing my career as a firefighter. We're do I stand with this please?
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 do you think it would be before you can return properly?
Customer: Hi,I think it's only going to be around another three weeks, as long as I'm allowed to stay off and rest
Ben Jones :

Good morning. When an employee is off work on sick leave, their employer would have a duty to try and help them and facilitate a return to work as soon as possible, taking into account their condition and any recommendations made by doctors in terms of what they can and can’t do or what adjustments need to be made.


 


A common way to bring someone back to work is to offer them light duties so that they are ‘rehabilitated’ back into work and allowed a time to slowly adjust back to full duties. However, that is not set in stone and not every job or workplace would allow that, so it is only an option if it is suitable in the circumstances.


 


In your case, it may have been suitable if you were not prevented from driving and to expect you to undertake 5h travelling a day just to do light duties would be completely unreasonable and counter-productive. So you may certainly highlight the situation you are in and argue that it is clearly unreasonable to expect you to undertake such a long commute just to do some basic light duties in the office. If you are still unable to travel because you cannot drive and the office is not an easy commute away, you would either have to remain off sick until you are able to come in, or you should be given duties that you can do from home.

Customer: Is it reasonable for me to request that I don't go on light duties if this is the case? And how would I go about arguing the fact if the brigade h.r dept are insistent that I go in to the station regardless of my commute problems at present?
Ben Jones :

Yes it is entirely reasonable that you do not go on light duties considering the commute you have and the fact it is unlikely to help you with your recovery as you will not be resting in the process. There is no right or wrong way to argue this, you could provide as many reasons and defences as you wish but if you have a clueless/stubborn person on the other end they may continue insisting regardless of that. It is simply about being clear with your position and specifically listing the reasons why it is going to be unreasonable in this case for you to do what you have been asked to, reminding them that light duties are supposed to help you back into work and this is certainly not going to do that with all the commute you have to do

Ben Jones :

Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? Thanks

Customer: I have a review with the brigades occupational health dept this week, but this is just with their physio and not a doctor. I have been referred to an orthopeadic surgeon for assessment by my g.p ,but have not received a date for this yet. If when seen the physio at work they say that I should start light duties straight away, can I refuse until I have had the review by the surgeon? As this would be the more qualified person to assess me.
Ben Jones :

you may ask for a second opinion or more specialist opinion if you strongly believe that the initial opinion given is wrong or based on incorrect assumptions, so yes you could use that as a delay

Ben Jones :

Has this clarified your query?

Customer: Would I be within my rights to refuse to start light duties until I have had the second opinion though? Or could I face discipline actions for doing so?
Customer: Also I have been talking to a colleague and they have informed me of a new practice that the brigade is trying to bring in, that once on light duties, if your are not back to full health and duties within 6 weeks, they will try and terminate your contract on capability grounds.
Customer: if this is true, then is this lawful , and is it lawful or right for them to force someone to start light duties, even if that person maybe still unable to return fully after 6 weeks? Seems like forcing a way to terminate someone's contract unfairly to me.
Ben Jones :

You can refuse the light duties if you have a good reason to believe that the initial opinion i incorrect or flawed or that you have serious concerns about it and believe that a second opinion is needed. In terms of terminating your contract, eventually that is a possibility because capability (or lack of) is a potentially fair reason for dismissal but it is not as simple s giving you a specified time limit after which they can dismiss. When looking at the reasonableness of such a dismissal, the tribunal will usually look at the following elements:



  • What was the nature of the illness

  • Was the employee consulted over their position and did the employer try to ascertain the true medical position

  • What was the likelihood of the employee returning to work or the illness reoccurring in the future

  • The effect a prolonged absence would have on the business and the workforce

  • The availability of other suitable employment that the employee could do instead


 


Dismissal must always be viewed as a last resort by the employer. Only when it is obvious that the employee cannot continue in their job and that there was nothing else available for them to do would dismissal become a fair option. So just giving you a time period of 6 weeks and dismissing if not back on full duties by then is unlikely to be fair

Ben Jones :

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