One of our managers has been off work for 2 weeks with a twisted ankle. He has a certificate for 3 weeks but he wants to come back to work. We have told him that he cannot do that because he is still signed off and our Insurance will not cover it .We wondered if we could require him to get a note saying he is now fit for work and if he comes back ask him to sign something accepting responsibility if his ankle gets worse.
Peter replies:
You seem to be labouring under the misunderstandings generated by two urban myths, a legal misunderstanding and bit of very old practice.
Firstly, there is nothing to stop individuals returning to work ‘early’. A doctors’ sick note or fit note as it should now be called is just advisory. It has little authority in law. Obviously if the doctor has said someone is not fit then consider carefully the issues before letting someone come back to work. Certainly if you believe that they are only returning for financial reasons and are not really fit then you would be unwise to let them do so. You need to conduct a risk assessment and see whether a return to work is feasible in terms of their productivity but most importantly their health, safety and welfare. Work is good for people unlike day-time television! If he wants to be working and he can get himself to work safely or you can arrange a lift/taxi, why would you not want him back, if reasonably practicable?
The second myth is that Insurers will not let people return to work. It is conceivable that if you did something reckless and let him back doing a heavy, dangerous manual job without a proper risk assessment that they could refuse cover, in the event of an accident, but forget this argument.
We are not sure when it was decided that it was not necessary for doctors to give patients a certificate to say that they were now fit for work, but it is so long ago that I and my colleagues cannot remember it.
You cannot sign away your duty of care or get an employee to do the same. You just need to do a risk assessment and monitor the situation. If he has come back too early, then have an adult conversation about cutting down, or going back ‘on the sick’. Trying to get some sort of written assurance that it is his decision and consequently you are not responsible for any consequences is just nonsense.
You should talk to him as soon as possible about what he can and cannot do, and what you have to do to change his job until he gets better.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.
