Employment Lawyers Can Answer Your Employment Law Questions
Hello, my name is ***** ***** it is my pleasure to assist you with your question today.
Are there any other positions the employer can offer you to help you with getting back to work?
If you return to work but you are unable to do the usual hours which you did before going off sick the employer does not have to pay you your normal pay for the full amount of hours you used to do. They are obviously not getting the same level of work from you and even though that may not be your fault, it is not theirs either so they can only pay you for the actual hours you do, or reduce your pay in proportion to match that. There is an argument that for a limited period of time they should pay you as normal because they will be making ‘reasonable adjustments’ by allowing you a phased return to work but that will only last for so long, even though no specific term is mentioned anywhere in law. It could be a few weeks or a month or so.
If you cannot return to your old position then the employer could eventually consider dismissal. That is because capability, where an employee is unable to perform their job due to ill health, is a potentially fair reasons for dismissing an employee under the Employment Rights Act 1996. The definition of ‘capability’ includes competence (skill and aptitude), health (any mental/physical quality) and qualifications.
Whether a capability dismissal is fair will depend on the particular circumstances and the procedure that was followed. The employer needs to show they had reasonable grounds to believe that the employee was incapable of performing their job and that nothing further could be done to assist them. In the end they need to show that dismissal was a reasonable decision to take. The courts have held that an important consideration is whether any reasonable employer would have waited longer in the circumstances before dismissing the employee.
When looking at the reasonableness of such a dismissal, the tribunal will usually look at the following elements:
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 in summary, if the employer has not taken time to investigate the true medical position, whether suitable employment was available and generally considered the effects the employee's continued absence would have on the business, any dismissal could potentially be unfair. In addition, if they have failed to make reasonable adjustments in the event the employee's condition amounted to a disability, this could also amount to disability discrimination.
you can certainly suggest it but you cannot force the employer to agree to it
you are most welcome, all the best