For February 2020, we have asked the employment team at Tughans to provide practical answers to unusual, sensitive or complex work-related queries. We call this feature “How do I handle it?”

The articles are aimed at HR professionals and other managers who may need to deal from time to time with the less common place disputes at work; issues that may, if handled incorrectly, lead to claims of discrimination or constructive dismissal or some other serious difficulty.

We have an employee who has been absent from work due to a shoulder injury.  They have been certified by their GP as being fit to return to do lighter duties.  We do not currently however, have any lighter duties that they can return to and have asked them to provide us with sick lines to cover their absence until they are fit to return to normal duties.  They are reluctant to do this.  How do we handle it?

You have not said whether the individual is disabled within the meaning of the Disability Discrimination Act 1995 (DDA).  You may want to seek further opinion on this from the employee’s GP, consultant, and or from your occupational health provider.  As you know, if this employee is disabled under the DDA, you will have a statutory duty to make reasonable adjustments.

It may be that in considering this statutory duty, you will revisit the availability of lighter duties for the employee.  As you know, you should consider factors such as the size of the workforce, availability of resources, the nature of the employee’s role, and impact on fellow workers in assessing your duty to comply with the statutory obligation to make reasonable adjustments and facilitate this employee’s return to work.

If the employee is not disabled under the DDA however, I suggest you should still consider adjustments in the hope of allowing this employee to return to work quickly.  Such considerations would go some way in demonstrating that the employer had behaved reasonably in dealing with this employee.

A reduction in duties, or allocating the employee’s duties elsewhere, or even allowing the employee to return as additional head count, could be considered reasonable in dealing with the employee and their particular shoulder injury.

If the employee is willing and able to return to work, as it appears they are, and you prevent him from doing so, you may have an obligation to pay wages to the employee in these particular circumstances, unless there is a contractual right not to do so.  As there is a sick note from the employee’s GP confirming that they are fit to return, and the employee expresses their wish to return to work, it would appear in all the circumstances that the employee will be entitled to receive their wages, whilst the employer carries out enquiries about the availability of work.  A failure to undertake such enquiries within a reasonable time should be avoided.

I am assuming that whilst the employee is absent due to illness and you ask them to remain at home, they do not have access to an occupational sick pay scheme, or have exhausted their entitlement under it, and therefore would be in receipt of SSP only. Subject to the terms of the employment contract and sickness absence policy, a failure to pay the employee their salary during this time could lead to a claim for unlawful deduction of wages, a breach of contract, or a breach of trust and confidence, which might allow the employee to resign and allege they have been constructively dismissed.

Whilst it appears the employee may not be fit to undertake work they are employed to do in accordance with their contract of employment, you should review your contract and policy to ascertain whether there are provisions there which would allow you not to pay the employee unless they are fit to undertake all of the duties of their usual role, or to require them to remain absent until fit to undertake all of their full duties.  I suggest you should also consider the extent or nature of any lighter work available, as these duties could form a substantial part of their substantive role, or it may be reasonable to temporarily move the employee elsewhere within the workplace whilst their shoulder injury recovers.

You should also consider the possibility of a risk assessment, and liaise with the GP or OH, to ascertain which lighter duties the employee can undertake. I suggest you carefully examine the circumstances of this particular employee’s contract of employment, his full role, and any alternative duties available before coming to a final decision in the matter.