Quite often, HR has the job of trying to “coax” a reluctant employee back to work after long-term sickness absence, but sometimes the issue is that an employee wants to return early, before their sick note expires. It might be that their sick pay has run out or they feel that they are “missing out” and are anxious about the impact of their absence on career opportunities and/or client relationships.
There is no “rule”, as such, against an employee coming back to work before the “end” date on their sick note. But must the employer allow this if the employee asks to return early and is this a good idea?
In some cases, returning to work is a good thing all round. In the situation where an employee has made a rapid recovery and is fit sooner than expected, the employer can benefit from their skills and productivity earlier than anticipated whilst the individual gets to return to “normality” and resume their position with minimum disruption.
However, there may be situations in which, notwithstanding the employee’s wishes, the employer should think carefully before agreeing to such a request. Firstly, in the case of communicable diseases, the employer will wish to prevent infection of the wider workforce bearing in mind the consequences in terms of multiple absences and its overall duty of care. Usually, the medical advice will indicate when it is sensible for the employee to return and the employer will not be unreasonable in following this. Consequently, if there is a relevant incubation or “waiting” period, the employer can insist that this is observed.
Another consideration is where the job the employee does entails physical demands that may have been impacted by injury or sickness. For instance, if they have had a back problem are they now clear to lift manual loads (if that is what their role entails) or is further rest advised? If they have had vertigo and need to work at height, is the employer reasonably satisfied that any symptoms have now passed? In post-operative cases, it will seldom be advisable to cut short the recovery period indicated and an employer must in any event bear in mind health and safety duties owed both to the employee concerned and colleagues with whom they work.
With work-related stress absence, there are additional risks for the employer to weigh up. If the employee returns to work before the expiry of their sick note and they are not “ready”, there is the possibility of a relapse or further events occurring at work on which they may place blame for making them unwell (or worsening their pre-existing condition). If the condition is likely to count as a “disability” for Equality Act purposes, then reasonable adjustments should also be discussed. In all such cases, a cautious approach is advised which may involve obtaining occupational health advice on the best way (and timing) for the employee to return to the office.
Ultimately, each case can be different depending on the specific reason for absence and what is reasonable in the circumstances.
A recent case highlighted what might be considered unreasonable conduct on the part of the employer. In Fajri v Vantage Capital Markets Limited [Case 2209562/2023] the complainant, who applied to return to work following cancer treatment, was informed that she could not do so until she had undergone a full medical assessment. The tribunal found that this was unfavourable treatment in consequence of disability as this delayed reinstatement and resumption of her pay whereas the requirement for a medical was “not strictly necessary” and not a proportionate means of achieving a legitimate aim. The award in favour of the claimant was just under £15,000.
