Supporting employees who return from work

From a legal perspective, there is little actual law stating how employers should support staff returning to work after sick-leave. But by following some good HR practices, employers can avoid risks associated with unfair constructive dismissal and discrimination as well as helping to minimise further absences

We’re discussing long-term sick leave here, rather than intermittent short-term absence for minor ailments. There’s no legal definition of what long-term means, by the way, although often a rule of thumb is more than four weeks Employers should be alert when any medical condition has required an above-average amount of time off work, whether that is spent in one go on sick leave, or intermittently along with tests and treatment over an extended period of time.

An employer’s duties to avoid disability discrimination are triggered where an employee has a ‘long term’ condition that has more than a minor impact on their day-to-day activities. In this context, long-term means over a year, but remember a long-term condition may lead to shorter-term absences.

If an employee is returning to work from sick leave, the absence management process can be regarded as having succeeded. However, it is not complete.

With any luck, it will have identified that the returning employee has a ‘long-term’ condition. Contact will have been made with their GP or specialist to find out what adjustments are recommended for their return. Typical adjustments include a phased return (that is, working their way up to normal hours), restricted duties or special equipment. Identifying adjustments are usually suggested by medical professionals but need to be implemented in discussion with the individual.

As an example, a client of ours returning from brain surgery was recommended adjustments of having a quieter working environment and curtains partly drawn because otherwise sensory inputs became unbearable. The employer was surprised by these. In a claim for failing to make reasonable adjustments under the Equality Act, the law doesn’t consider the adjustments the employer has made, only those that it has not.

Even if the absence process hasn’t resulted in contact being made with those treating the employee it’s not too late.

We recommend that employers hold a return-to-work interview with anyone returning from a period of sickness, no matter how short. It not only discourages abuse of the sickness absence policy, but it may reveal relevant information about the real causes of the absence and whether it is likely to recur. For example, alcohol abuse, domestic violence, caring responsibilities, inability to afford treatment, other, unmentioned, medical issues.

We have a client whose return to work interview identified that she couldn’t afford counselling, for which there is a long waiting list on the NHS. However, her employer regards the cost of private counselling as good value for money in helping to bring her up to full capacity and has agreed to fund the treatment.

An employee who has been out of the business for whatever reason may be feeling rusty, perhaps second-guessing their every decision and working more slowly than necessary to avoid performance criticisms. Employers sometimes overlook updating a returning employee on the software, process, personnel and other changes that have taken place in their absence. Dealing with these things involves empathising with the employee and baking that into policies. It benefits the employer, because many of the constructive dismissal claims that we see result from an employee claiming they were ‘set up to fail’

Checklist for interview with employees returning to work

  • Welcome them back to work.
  • Take (and keep) a note of the conversation.
  • Keep the conversation free from mentions of misconduct or performance.
  • Check that your record of the reason for the absence is correct
  • Check that they consider themselves fit to work or is a phased return appropriate.
  • Don’t ask for medical proof of fitness as a condition of returning.
  • The absence process should have revealed this but consider whether a risk assessment may be helpful if there are ongoing symptoms.
  • Ask if they can think of any support needed at work. This is especially the case if the absence is work-related or related to stress, pregnancy, disability or if there may be a relapse or further treatment.
  • Ensure any agreed adjustments are implemented and carried through by the appropriate line managers.
  • Consider a review period and check back after it.

Image used under CC courtesy of Trevor Wright