Employers can often find themselves in the difficult situation where a Fit Note or an Occupational Health report deems an employee unfit to work but the employee insists that they are fit to work and wants to return to work. The position isn’t always clear whether the employer can require the employee to remain on sick leave and pay them Statutory Sick Pay (SSP) or, given the employee has declared themselves fit to work, if the employer disagrees whether they would be required to medically suspend the employee and pay them full pay. Some employers wonder whether they can require them to remain off work at all.
If an employee is willing and able to perform work in accordance with the contract, the employer has an obligation to pay wages, unless there is a contractual right not to do so. Whether or not an employee is “willing and able” to work will depend on the medical evidence available. Where there is evidence that the employee is fit to work but the employer still has concerns to investigate, the employee will normally be entitled to their normal contractual pay during the time it takes the employer to satisfy itself regarding the employee’s fitness. This is because the evidence suggests that the employee is willing and able to perform work.
The position could well be different where the employee indicates that they are willing and able to work but the medical evidence available (such as a fit note) indicates that they are not fit to return. In the absence of medical evidence supporting the employee’s position it is arguable that, although they may be “willing” to return to work, the evidence suggests that they are not “able” to perform work. The employee could therefore continue to be treated as being on sick leave in terms of pay. However, it is important to note that this is not a blanket approach and consideration should be given to the facts of each case and caution exercised.
Employers sometimes consider that medical suspension is an option in circumstances where the employee is claiming they are fit to work but the employer is not satisfied that they employee can return to work. However, medical suspension is very specific and can only be used in certain circumstances.
The statutory right to medical suspension pay is contained in sections 64, 65, 69 and 40 of the Employment Rights Act 1996 (ERA). Under section 64, an employee who is suspended from work by his employer “on medical grounds” is entitled to be paid for up to twenty-six weeks. “On medical grounds” means that the employee is suspended in consequence of regulation 16 of the Control of Lead at Work Regulations 1980; regulation 24 of the Ionising Radiations Regulations 1999 or Regulation 11 of the Control of Substances Hazardous to Health Regulations 1998.
Employees are not entitled to medical suspension pay in respect of any period during which they are incapable of working due to disease or bodily or mental disablement. S.65 ERA provides that employees would not qualify for pay where they have been offered suitable alternative work and they have unreasonably refused to do it or they have not complied with reasonable requirements imposed by their employer with a view to ensuring their services are available. As such medical suspension will not be an option unless the specific requirements are met.
What does case law say?
In the case of J Leeve v Lidle Great Britain the employee was sent to OH by employer, as a result of joint pains in upper and lower limbs and spine and an issue with their heart rhythm. The report concluded that the employee was only able to undertake lighter duties and other adjustments were suggested. The Respondent put the Claimant on sick leave on the basis that it was unable to meet the requirements of the OH report. The Claimant wished to return to work and stated that he should have been placed on medical suspension and received full pay from the employer, not SSP. The Claimant brought an ET claim in relation to the Employers failure to pay full pay but was unsuccessful. The ET held that:
- For the avoidance of doubt, the position is that if not able to work for health reasons employees are entitled to sick pay in accordance with statute or the contract of employment.
- Employees are entitled to full pay if medically suspended but only if they fall within s.64 ERA and are not excluded from that right by s.65 ERA.
Further to the above, employers should also consider whether allowing the employee to return to work contrary to medical opinion would be putting the employees own, and potentially colleague’s safety at risk. This may also invalidate their Employers’ Compulsory Liability Insurance.
If you have concerns regarding an employee’s fitness to work, you should carefully consider the circumstances and take further advice.