Q: One of our drivers has recently an operation on her leg and she was told that she could drive after one week. Three weeks later, however, she is still unable to do so as it was too painful. We advised her to go back to her doctor and she has been signed off for another week to rest.
She wants to return to work but cannot really drive and we have no ‘light’ / different duties. We are concerned that we would not be fulfilling our duty of care if we allowed her to return on this basis. The doctor has produced a note that says she is unfit to work. What is the legal position here and what should we do?
A: This is quite a common problem and puts the employer in a difficult position – you want to help the employee get back to work asap but equally you are mindful of also not doing anything that may be a risk to the company or set a precedent you might regret later. Very often is occurs when a low paid employee will be hit in the pocket and therefore wants to return before the “fit note” expires simply out of financial necessity – i.e. earning a lot less on SSP than being at work (and very often leads to a request for some holiday to be taken instead).
However, in this case potentially you would be in breach of your duty of care if you allowed your employee to return to work. If she is certified as unfit to work and you allow her to do so knowing this, in the event that they (or even others) suffer further harm, you would be liable for that harm, and in breach of your duty of care to that employee.
It is also more likely than not that any insurance cover e.g. compulsory liability insurance and vehicle insurance, that you have would be invalidated by allowing her to work when certified as unfit.
In the first instance, you could perhaps ask her to clarify with her doctor whether the intention had been to say that they were unfit to undertake any aspect of their role. It may well be that the staff member is fit enough to do some other work.
However, the current fit note – “Statement of Fitness for Work" already allow the GP to say that the employee may be fit for work if duties are modified.
There are two boxes - one saying "You are not fit for work" and the other saying "you may be fit for work taking account of the following advice" and one of the following advice options is 'amended duties'. Given these inbuilt options I would have thought that if the GP has not made any suggestions then they think the employee is not fit for work.
If you wish to allow them to return to their duties while signed off sick, you should certainly first seek clearance from her doctor that it is acceptable. In this case, the doctor may say that the employee is fit to carry out duties while at work, but if not, you should not allow her to return.
You should speak to your insurer to make sure of your position in this respect.
Depending on the seriousness of a condition, employers could also consider obtaining an occupational health report to help identify what you can do to help facilitate a safe return to work and identify what the individual can and cannot do. However, this approach may not be appropriate if the employee’s return to full fitness is imminent. However, after 4 weeks absence employers can also now seek a referral under the Fit for Work service (free).
It is always sensible - as well as a legal requirement - to carry out a risk assessment based on the information provided by occupational health professionals and/or the employee’s doctor which will help identify what could cause harm to the individual and whether you have taken enough precautions or should do more to prevent it.
Naturally the matter should be handled sensitively and, in the event that you cannot accommodate the employee’s immediate return to work, you should explain the reasons for this decision.
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