Fit for Work?
27 July 2016
If you don’t think an employee is fit to work, and they are signed off by their doctor, things are fairly straightforward. If, however, both the employee and their GP then proceed to claim that they are fit to work, but you disagree, the situation can potentially get a little tricky. You may feel the employee would present a danger to themselves and others, but what actions can you actually take?
Each case will have its own particular circumstances but, generally speaking, where an employee presents themselves as fit and willing to carry out their contractual duties, you will be obliged to pay them. Refusing to pay them and simply stating that they remain ‘off sick’, regardless of their GP stating otherwise, would be an extremely risky course of action. It is also a route which would be highly likely to result in a successful claim for unlawful deduction from wages and, potentially, constructive unfair dismissal.
A possible option would be to suspend the employee (on full pay) while you ascertain the relevant medical evidence. Suspension is not without its risks. There is an implied duty for an employer to provide work and any contractual right to suspend may well be limited to misconduct matters. However, if you have legitimate concerns which are handled sensitively, the risks will be significantly reduced.
Obtaining a medical report during this time may provide the evidence you require – either to demonstrate that the employee is indeed unfit for work or to show that they are actually able to return. An Occupational Health report can address the impact of their illness on their ability to do the job. At all stages, you must ensure that you engage with your employee in a sensitive manner and explain why you feel a medical report is required.
The employment relationship is not always straightforward and can throw up all kinds of issues. When you are confronted by these, Alpha can help. We have a vast experience in providing practical advice. We are proud of our commercial outlook and do not sit on the fence. If you would like to have Alpha on your side, please feel free to contact us.
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