Helping employees with a phased return to work

Helping Employees with a Phased Return to Work

After an employee has been off work for an extended absence, whether through ill health, maternity leave or bereavement, the transition back to work can be quite difficult for some employees. A phased return to work allows employees to make that adjustment in a more manageable way.

In this phased return to work guide for employers, we help you to understand both your obligations and your employees’ rights under UK law.

What is a phased return to work?

A phased return to work is a way of getting employees back to work on a staggered basis after a lengthy period of absence from work. It allows employees to make the transition from being off work to returning to full-time work easier and less stressful. It is a positive and beneficial way of managing the situation for both employees and employers.

A phased return can be used in instances of long-term sickness (physical or mental) or injury, bereavement, parental leave, or maternity leave.

By offering a phased return, employers are allowing those employees suffering from a sickness or injury to recover gradually whilst enabling them to return to work earlier than they would otherwise have done.

There is no set approach when it comes to a phased return plan. Each employee’s circumstances and reasons for being off work are different and therefore require individual consideration. An employer is generally not obliged to offer an employee a phased return, but it is considered good practice – including supporting employee welfare – and there are many advantages in doing so. The exception to this is where an employee has a disability, an employer is legally obliged to make reasonable adjustments to help them return to work, as we discuss below.

Phased returns can be made by way of reduced working hours, limited work duties, or different work duties.

Before offering a phased return, an employer should meet the employee and discuss arrangements going forward. It is vital that the employer ensures that the employee is ready to return to work, before agreeing on a plan of action. Employees may need additional support once they return to work, perhaps through an Employee Assistance Programme (EAP), or by a referral to the occupational health service.

There is no set period for a phased return, but typically it will be for between 4-6 weeks. It is for the employer and employee to agree the timescale between them. For absences due to sickness, a GP’s note will normally suggest a suitable timeframe for the employee to get back to work full time.

An employer can offer an employee a phased return or the employee can request it, on the advice of a GP recommendation or an occupational health assessment.

What are the advantages of a phased return to work for employers?

There are several benefits for employers in offering employees a phased return to work:

• Offering a phased return limits the chance that the employee will not return to work at all, for fear of feeling overwhelmed by full-time work. There is therefore a better chance of retaining valuable employees by meeting their needs at the outset.
• It saves an employer time and money in having to recruit and train replacement staff if the employee decides not to come back.
• It boosts general morale in the organisation and creates a positive and supportive work environment where employees know they are valued and that their health is taken seriously.
• It also facilitates a more successful transition back to work where an employee is less likely to have a setback in their recovery and potentially being absent again.

Examples of phased return arrangements

In addition to the different approaches that must be taken for each individual employee’s phased return, there are also different steps that should be taken depending on the reason the employee was off work in the first place.

Phased return after sickness or injury

In most cases regarding ill health or injury, a GP or occupational health professional would make a full assessment of the employee, and either recommend a return to work on the issuance of a “may be fit for work” fit note, or a report finding an employee unfit to return to work.

If the employee is deemed able to return to work, the employer and employee must come to a suitable arrangement to meet both parties’ needs. If such an agreement cannot be reached, the employee would be treated as not being fit for work and a capability procedure could be appropriate to determine if the employee should be dismissed on incapacity grounds.

The doctor can make suggestions as to how the employer can reintegrate the employee into the workplace and give advice on how the employee’s condition might affect their work duties. A fit note, as opposed to a sick note, is designed to focus on the positive scenario of enabling an employee to get back to work, and highlights what they are still able to offer in terms of capability.

An employee who returns to work after sickness or injury may also qualify as having a disability under the Equality Act 2010 and will be automatically protected against discrimination. A disability is defined as a physical or mental condition which seriously impacts on an employee’s ability to carry out normal daily duties. Certain physical conditions which qualify are cancer, multiple sclerosis, HIV, visual impairment, or a long-term facial disfigurement. A general principle is that the more serious the condition, the more likely it is to constitute a disability for which reasonable adjustments should be made by the employer to get the employee back to work. Reasonable adjustments might include changes to the employee’s working hours, duties, or workstation or equipment.

Phased return after stress

As with sickness leave, a fit note is usually issued by a GP or occupational health practitioner following a period of poor mental health, and any recommendations made therein followed.

An employee suffering from stress needs to be handled sensitively as stress itself can be considered a disability under the Equality Act 2010. Employees may prefer to communicate through a third party or may appreciate support from an employee assistance programme.

As stress may have arisen in the workplace, it is crucial that an employer gets feedback from the employee on what caused the stress and ensures that any reasonable adjustments are made so that the situation does not arise again.

Phased return after bereavement

Most people will require compassionate leave at some point in their lives after the death of a loved one. An employee has the right to time off if a dependent dies. A dependent is classed as a partner, parents, a child if under 18 (or a still birth after 24 weeks of pregnancy) or any other person who was dependent on the employee.

There is no set timeframe for compassionate leave as there is for sickness leave (except in cases of parental bereavement leave), so it is up to the employer to come to an agreement with the employee as to what is appropriate in the circumstances.

Phased return after maternity leave

An employer is under no obligation to offer a phased return to an employee who has been on maternity leave, but as some employees may have been off work for a year, it might be good practice to offer it to ensure a smooth transition back into the workplace and aid a new mother to adapt to the practicalities of a new routine in terms of childcare and breastfeeding.

An employer could offer reduced working hours initially, and employees should also make the most of Keep in Touch days until their return. If an employer is unable to offer reduced hours, they could offer a phased return using holiday entitlement instead.

Impact on pay and entitlements

The impact on an employee’s pay when they come back to work on a phased return depends on why they have been absent from work and the approach that is taken in coming back. Different options are available to an employer to consider, but it is vital that an employer discusses with the employee the impact of a phased return on their income.

An employer might return the employee to their full pay on starting work on a phased return. However, a lot of employers will struggle to meet this commitment and may therefore offer to pay regular pay only for the hours they work, if they come back on reduced hours. This could then be supplemented with Statutory Sick Pay (SSP) or Occupational Sick Pay (OSP) if the employee qualifies for these. The phased return will need to be structured carefully to ensure the benefit will apply to the employee’s new working week.

If the employee has a revised set of duties, the employer may wish to pay the employee an amended rate of pay.

Apart from SSP or OSP, the only other statutory benefit available to an employee is parental bereavement leave, which provides that a parent who has lost a child under 18 can take two weeks’ paid leave at £151.97 a week or 90% of their average weekly earnings, whichever is lower.

As an alternative, an employer might agree with the employee that they can use accrued holiday entitlement to top up their pay when on a phased return. Statutory holiday entitlement of four weeks continues to accrue while an employee is on sick leave.

Any changes should always be clearly explained and put in writing to the employee.

Best practice advice

• An employer should ideally set out their return-to-work policy in an employee handbook or as part of a sickness absence policy so that all employees know in advance what the procedure is should it arise. This provides clarity and consistency through the organisation.
• An employer should keep in regular contact with an employee who is absent long-term to regularly review their health and wellbeing and ability to return to work.
• An employer should listen to the employee’s suggestions and concerns about a return to work and try and incorporate these into the employee’s work schedule, if possible. A return-to-work plan should be created based on these discussions and should consider any medical recommendations.
• An employer cannot impose a phased return on an employee. Both parties need to agree to it and any variation to an employment contract needs to be in writing.
• A phased return should be revisited halfway through to ensure that it still meets the needs of the employee and the organisation. Adjustments should be made if necessary.
• Risk assessments should be undertaken frequently in the workplace. Employers should decide whether a risk assessment is needed when an employee returns after a long absence. At the very least, the employee should understand the risks posed to them in the workplace. This is especially important where an employee has a physical or mental disability.
• An employer should always seek legal advice before deciding to dismiss an employee who is or has been on long-term leave. An Employment Tribunal will want to ensure the employer consulted the employee properly, took relevant medical advice and made any reasonable adjustments in the workplace to help the employee return to work.

Phased return to work FAQs

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Legal disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.