Legal Q&A: Rehabilitation to return to work

With the government putting in place a complex package of support to get people back to work (Pathways to Work), there is a growing focus on what employers could and should do to get ill or injured people back into the workplace.

Employers are urged to make workplace modifications, communicate better with GPs, and even pay for rehabilitation and case management. But what if the employee simply doesn’t seem to be getting any better? Can you dismiss them? If not, what other options do you have?

Q Can we legally dismiss an employee who is undergoing rehabilitation?

A The short answer is yes. There is no absolute prohibition on dismissing an employee because they are attending rehabilitation. However, the dismissal of an employee on the grounds of long-term ill health should only be a last resort. All other options need to be fully considered and discussed with the employee, and all possible adjustments need to be made to support the employee’s continuing employment.

The key question is whether, in all the circumstances, the employer can reasonably be expected, in light of the requirements of the business, to wait any longer for the employee to recover and return to work. This will depend on, among other things, the size and resources of the business and the degree of disruption or difficulty that the long-term absence is causing.

Q How should we go about it and would we need to give them a ‘warning’?

A There should always be warnings given before any dismissal. It is very important that the employee is aware of the time limits that will trigger employment reviews, and knows that a decision will be made if they are still absent.

Remember you will have to follow the statutory dismissal process, otherwise the dismissal will be found to be automatically unfair.

Q For employees who are long-term sick, but say they are undergoing physiotherapy, can we ask for updates on how they are doing?

A Yes. It is important that employers keep in touch with the employee during the absence and take into account how treatment is progressing. Not only will this help the employee realise there is concern about their absence and that they have not been forgotten, it can also encourage them to return. Keeping up to date with the employee’s progress will also help management to evaluate how much longer the absence will last. In turn, this will assist in organising temporary cover.

Q If we create a suitable role to help them return to work, but they refuse, can we potentially dismiss them?

A Under these circumstances, it does not automatically mean the employee can be dismissed. However, the refusal of the alternative position will be taken into consideration when reviewing the absence and deciding whether it is reasonable to dismiss.

Q How do we contact the employee’s GP or physiotherapist to see how they are doing and what can be done to help them return?

A The employee needs to give their consent. Before contacting the GP, be mindful of the provisions of the Access to Medical Records Act 1988, which gives the employee the right to see any medical report prior to it being shown to the employer and to withhold consent to its disclosure. You are obliged to make the employee aware of these rights when requesting the medical information.

You may ask the employee to see an independent medical practitioner or company doctor rather than request a report from the employee’s own GP. In these circumstances, the provisions of the Access to Medical Reports Act do not apply and employees do not have an automatic right to see a copy of the report before the employer.

Q Should we offer to pay for extra rehabilitation/physiotherapy?

A If the employee is disabled then the employer will have to consider the duty to make reasonable adjustments as provided in the Disability Discrimination Act. Whether an adjustment is reasonable or not will depend on a number of factors. In particular, the extent to which taking the step would help the employee carry out their duties and whether it is practicable, taking into account the costs and the employer’s resources. Obviously, if a medical insurance policy covers such treatment then it should be offered.

Q How long do we need to wait before looking to fill their role?

A There is no time limit in law after which it is fair to dismiss an employee who is absent from work due to sickness. There is also no such thing as a presumed resignation, where the employee has been absent due to long-term sickness. The legal concept of ‘frustration’ of contract applies only in very rare circumstances where the contract has become impossible to perform, or radically different from what the parties originally intended.

Michael Ball,
Employment partner,
Halliwells

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