Can an employer force sick leave?

freezeeh

Hi, I'm wondering if anyone can advise on the below situation?

An employee has been deemed not fit for aspects of their role by occupational health due to disability, but can do other duties (light duties). The employer is stating that there are no light duties available... can the employer force sick leave even if the employee states they are fit for work and does not have a sick note?

theoretica

Is the employee saying Occupational Health are wrong and they can do all aspects of their role?

freezeeh

No, occupational health has said they are not fit for aspects of the role, but they are fit with adjustments. They have a condition which could be deemed a disability under the equality act.

There are other employees on the same contract who do the light duties which the "sick" person would be able to do. But the employer says it would not be reasonable for them to do this as there isnt enough of this work stream.

General_Grant

Does the person receive SSP or is it enhanced by the employer?

I don't think it would be a reasonable adjustment for an employer to take the "light duties" from fully able employees to give them to another if it thereby means they have able employees who are underemployed but on full pay. The cost implications must surely be included in a test of reasonable-ness.

OK, that's my opinion and others may disagree.

freezeeh

^thanks for the reply.

They get company sick pay not SSP.

All employees (100+) are under the same contract, all are paid the same rate. Half the workforce do one type of work, the other half do another. So when I say light duties, I should have been clear in saying that it's "other" duties. One type of work aggravates the person's health, the other they would be able to do.

The option was offered to other employees to "swap" but noone wanted to. I can understand why they would not want to swap, and why the employer will not force the swap.

The main question is, can the employer deem the person as sick, when they are available to work, with the argument apparently no work that meets occ health guidelines?

The employer is going down the route of dismissal based on capability.

freezeeh

^I reread and realise that you mean the cost to the business.

theoretica

to me this looks like a case of disagreement over 'reasonable adjustments' for disability.
1) Does the condition meet the criteria for disability protection? Does the Occupational Health report mention it either way? If it does not meet this standard then the employer gets most things their way.
2) If the condition is legally a disability then the question comes one of what adjustments are 'reasonable'. With about 50 people on the other duties what is the staff turn over and how long until there might be a vacancy on that side of the team?

Blatchford

freezeeh wrote: »

can the employer deem the person as sick, when they are available to work, with the argument apparently no work that meets occ health guidelines?

The employer is going down the route of dismissal based on capability.

It's a very simple equation. You have a job, You cannot do that job due to your health. The employer claims there is no alternative work available (I am not getting into whether that is true or not, simply stating a fact). On that basis you are not fit to work. You are being paid full pay - that is the correct thing to do in this situation. It is angels dancing on pin heads what they call it - sick or medical suspension comes down to the same thing if you are being paid in full. They are moving to dismiss you based on capability. That is potentially a fair dismissal.

So, in short - yes they can do this.

You are at liberty to return to FULL duties in accordance with your contractual terms and duties. Otherwise, you are really on a hiding to nothing arguing that you aren't sick but also aren't fit to do your job. Sorry, but with the best will in the world, you are focussing on the wrong thing here. Just because someone says they are "fit" doesn't make them so, if their health is what prevents them doing their job. The issue needs to be whether the employer is right in saying that there is no work you can do and therefore they must dismiss you.

Undervalued

freezeeh wrote: »

Hi, I'm wondering if anyone can advise on the below situation?

An employee has been deemed not fit for aspects of their role by occupational health due to disability, but can do other duties (light duties). The employer is stating that there are no light duties available... can the employer force sick leave even if the employee states they are fit for work and does not have a sick note?

You need to get proper professional advice on this as disability discrimination can lead to significant compensation under some circumstances.

However, they are only obliged to make "reasonable adjustments" but the problem is judging what a tribunal would find reasonable. Lawyers of course make significant money arguing about what is reasonable!

Generally less would be expected of a small firm than a large employer but a staff of c. 100 is not that small.

Also, many / most employers do more than the minimum the law would require. That often leads to employees feeling that they have more rights than is actually the case.

As I say, proper one to one professional advice is needed.

74jax

So am I right in thinking there's 2 jobs. 1 job he can't do (the job he has - job A) and 1 job he can do (the job he doesn't have - job ?

Is he waiting for 1 person to leave job B and to apply for that job, or is he saying the company should create a new job B position and just recruit him to that role?

Does he agree with OH that he can't do job A.

Savvy_Sue

Is he in a union?