Return to Work: Guide for HR

    Return to work

    IN THIS ARTICLE

    If an employee has been absent from work through either illness or injury, especially for a prolonged period of time, it can take them a while to readjust on their return. In some cases, a number of changes may first need to be made to their working arrangements or working environment to help facilitate their transition back into the workplace.

    An effective return to work procedure, including implementing a return to work policy, and using a return to work form and interviews, can support absence management and positive employee relations, while reducing legal risks such as unlawful discrimination.

    In this guide for employers, we look at best practice approaches for supporting the return to work.

     

    Risks of mismanaging an employee’s return to work

    There are various risks, both in practical and legal terms, when it comes to the way in which an employee’s return to work is managed by an organisation.

    Practically speaking, the procedures in place for managing an employee’s return to work can make a significant difference to the speed of readjustment, ensuring that employees are working productively as quickly as possible, while feeling adequately supported in any ongoing recovery process. However, where these procedures fall short, or undue pressure has been put on the employee to return to work before they are ready, this can have disastrous consequences. An unwell employee is not only unlikely to work productively, but a premature return also runs the risk of exacerbating any ongoing symptoms. This could lead to further periods of sick leave or could even result in the employee feeling forced to resign.

    Legally speaking, in cases where the employee resigns because they no longer feel able to cope with the pressures of being back at work, this could result in a costly and time-consuming tribunal claim for constructive dismissal. Equally, any failure to ensure the employee’s health and wellbeing could result in a claim for breach of statutory duty, while any failure to provide reasonable adjustments could expose the employer to a claim for unlawful disability discrimination. Where mismanaging an employee’s return is responsible for any deterioration in their health, and the employee is dismissed on grounds of capability, the employer also runs the risk of a claim for both unlawful discrimination and unfair dismissal.

     

    What is a return to work policy?

    A return to work policy is a policy setting out the approach to be taken and the procedures to be followed once a period of long-term sick leave is coming to an end. This can be used to set out what the employee can expect from the employer in terms of support, and what measures can be taken to help the employee readjust back into a normal working routine. Equally, a return to work policy can be used to set out what is expected of the employee, including being available to undergo any independent occupational healthassessment prior to their return and reporting any problems that they may be experiencing once they are back at work.

    A return to work policy can also be used to encourage employees on long-term sick leave to openly discuss with the employer any adjustments that they feel may assist with their early return. These could include amended duties, altered hours, workplace adaptations or a phased return. The aim of a phased return, typically a combination of reduced hours and lighter duties, is to gradually introduce the employee back into the workplace, bridging the period between sickness absence and an employee resuming their previous role. Very often, resuming some element of normal activities or working routine can be beneficial to helping an employee get back on their feet after illness or injury, and in building up their strength.

    Most employers will already have in place a sickness absence policy, but a separate or addendum return to work policy can be used to focus specifically on the transitional period between being off sick and returning to work. The return to work policy can also be used to reinforce aspects of the sickness policy, such as the obligation on the employee to provide up-to-date medical proof of their fitness for work, typically by way of a GP’s fit note. It is often the fit note, with tick box recommendations for patients who are deemed as ‘potentially fit for work’, that provides the most useful starting point for a well-planned return.

    The overriding purpose of a return to work policy is to provide a clear framework for those responsible for managing the period between long-term sick leave and an employee’s transition back into the workplace, and to do so in a legally compliant and supportive way.

    Under the Health and Safety at Work etc Act 1974, all employers are under a statutory duty to ensure the health, safety and welfare at work of their employees. This includes the health and wellbeing of employees during any period of sick leave and on their return. Equally, employers are under a duty to make reasonable adjustmentsin the workplace for any employee suffering from an ongoing condition that amounts to a disability under the Equality Act 2010.

    By putting in place a return to work policy, this can help to ensure that any long-term sick leave is handled in a fair and lawful way, helping employers to discharge their duties when it comes to the health and safety of the workforce, and to disabled workers. In a legal context, this type of workplace policy will demonstrate a commitment to employees that they will be treated fairly and in accordance with the law, helping to maintain positive working relations and prevent the loss of a valuable member of staff through any unfair treatment.

    In a practical context, a return to work policy can be used to signpost the employee to any occupational health scheme or employee assistance programme, either in-house or via an external provider, to help speed up their recovery and expedite their return. In this way, it can be an effective way of helping to reduce the time that an employee will need to take off work, and in finding the best way to support and retain an employee post sickness absence.

    The policy can also be useful in guiding the employee through the procedures to be followed once they are deemed fit or potentially fit for work, so that they are clear about what is expected of them and what they can expect of the employer in return.

     

    What to include in a return to work policy

    There are no legal guidelines regarding the contents of a return to work policy, where this can vary widely between employers. The nature and extent of this type of policy can be tailored to reflect the size and resources of the business. However, regardless of how simple or extensive the policy, this should support the fair and consistent treatment of all employees. It should also be written in clear and comprehensible language, and made easily accessible to all staff.

    Securing professional advice from an employment law specialist when drafting a return to work policy can help to ensure that the policy is both effective and user-friendly. However, below we set out the key aspects that this type of workplace policy should include:

    • a statement of policy: as a starting point, the policy should include a statement of its purpose and scope, as well as the supportive ethos to be adopted by the employer when it comes to transitioning an employee from long-term sick leave back into the workplace. The employer should be clear about its commitment to ensuring the health and wellbeing of its workforce, and to making reasonable adjustments where necessary.
    • an explanation of the law: this should include the statutory duties that the employer is under when it comes to health and safety, and in making reasonable adjustments in the workplace, so that staff are fully aware of what protection they will be afforded by law.
    • what reasonable adjustments can be made: the policy should set out what factors will be taken into account by the employer when assessing what is ‘reasonable’, such as available resources and how effective the adjustment is likely to be. The policy should also set out a number of illustrative examples of the different types of adjustments that can be made to help accommodate an employee’s return and prevent further episodes of sick leave.
    • the details of any internal or external support services: many employers will have some form of occupational health scheme or employee assistance programme in place to provide medical assessments and other services to support an employee’s return to the workplace. The return to work policy should outline the nature of any support services available and how an employee can access these, including when a referral may be made for an independent occupational health assessment.
    • the return to work procedures to be followed: these may differ, depending on whether the employee is deemed fit for work, or potentially fit, subject to certain adjustments. If agreement cannot be reached, for example, on any recommended changes made by the employee’s GP or an occupational health specialist, or as suggested by either the employer or employee, the employee must continue to be treated as unfit for work. The policy should therefore emphasise the importance of agreeing a way forward, where at all possible.
    • the obligations on the employee: it is important that the employee is aware of what is expected of them prior to their return and during any period of adjustment following long-term sick leave. This could include being available to undergo any occupational health assessment and reporting any problems that they may be experiencing once back at work.
    • an explanation of the back-to-work interview: the policy should set out details of when and with whom a back-to-work interview will be conducted. There will also usually be the need for follow-up discussions, especially where an employee has been deemed potentially fit for work subject to certain adjustments being made. In these cases, regular reviews must be undertaken as to the effectiveness of any changes and, in all cases, the employer must ensure that there have not been any unexpected setbacks during the readjustment period.
    • the way in which an employee can lodge a complaint: even with a return to work policy in place to help manage an employee’s return from long-term sick leave, an employee may still feel unhappy with the way in which this transitional period has been handled. The policy should either signpost the employee to the workplace grievance procedure or set out the procedure to be followed for making a complaint in this context. The policy should also set out who has responsibility for these types of complaints, with relevant points of contact.

     

    Return to work interviews

    Where there has been a prolonged period of absence and the employee has notified you of their intention to return to work, it is a good idea to have more informal contact before they return to make sure they are ready. A phased return may be appropriate and you can update them about things that have happened or they may have missed whilst they have been away. If the employee needs any additional support (for example, they may have a disability) then it is a good opportunity to identify and discuss it with them and to make any reasonable adjustments necessary before they come back. If your company offers an employee assistance programme (EAP) and it is appropriate to the case at hand, then you should consider implementing it.

    Once an employee is ready to return to work, either on a full or phased basis, the employer has an ongoing responsibility to ensure that the transition back into the workplace is smooth.

    Most reputable employers will conduct an initial back-to-work interview after each period of absence. This will usually be held on the employee’s first day back and conducted by the employee’s line manager. The return to work interview provides the employer with an opportunity to welcome that individual back into the workplace and to reinforce any agreed proposals to accommodate the employee’s return.

    The meeting allows employees to update on their health, illness or condition, and to advise if and how it may impact on their ability to do their job, as well as allowing the employer to capture key information about the period of absence.

    The employer should also use this time to bring the employee back up to speed with any changes or important updates that will affect their work and to identify whether any reasonable adjustments (which we discuss below), or support ot training is required.

    The duration and degree of formality of the interview will vary depending upon the circumstances of each case, but in all cases, using a return to work form can help to document the discussion to be retained on the employee’s personnel file. For example, if the member of staff is rarely absent and the absence period was short-term, the meeting is likely to be brief and informal.

    It is worth considering that the prospect of returning to work following a prolonged absence can often be intimidating and stressful for an employee, so any discussions should be handled sensitively.

    However, where faced with persistent absenteeism or a long-term absence, the interview is likely to take longer and should be more structured to ensure a comprehensive discussion. Additional questions in such instances could cover ways to assist employees with ongoing and genuine health issues in the workplace, including any reasonable adjustments that may be needed. This could also include a referral to occupational health (if available) or arranging counselling.

    In most cases, regular follow-up checks should also be conducted, to ensure that the employee is coping and they are not experiencing any deterioration in their health. In this way, the employer can make further adjustments, if necessary, or readjust any timetable for a phased return, helping to minimise the risk of recurring absences. This can also help to make sure that the employee feels fully supported, regardless of how well they are doing, where it can often take time for an employee to readjust to a normal routine after a prolonged absence.

     

    Making reasonable adjustments

    If an employee has a disability then an employer has a legal obligation to consider making reasonable adjustments to help them return to work. Reasonable adjustments will depend on the specific circumstances, but could include:

    • Adapting or changing the set-up of the employee’s workstation or working equipment
    • Making a change to their working hours
    • Adapting or changing their duties, role or tasks

    By supporting your employees’ return to work and taking steps to prevent problems arising or exacerbating existing conditions, you are actively exercising your duty of care towards your employees.

     

    Phased return to work

    This is where an employee who has been on long-term leave comes back to work on reduced hours, lighter duties, or perhaps even different ones. Phased returns are usually used in cases of long-term illness, serious injury, or bereavement. As part of back to work discussions, an employer and employee should agree the duration of the phased return depending upon a number of factors which will be relevant to the individual case. For example, you could agree to review things on a monthly basis, as part of that you should continue to regularly review the employee’s health and wellbeing and make any new adjustments as necessary.

    If an employee returns to their regular duties but on reduced hours, then they should be remunerated according to their regular rate of pay for the hours worked. For the time they are not at work they should get sick pay if they are entitled to it.

    Where the employee is doing lighter duties, then it is up to both the employer and the employee to agree a rate of pay that reflects the duties undertaken. It is advisable to put any agreement in writing.

    If you are concerned that your employee has had a lot of sick days and longer absences then you might need to consider taking further steps.

     

    How to use a return to work form

    For employers, the information captured on a return to work form can both help to provide support to the employee on their return after a period of absence, and also help identify potential absence-related issues.

    Using a return to work form as part of your return to work procedureis good practice for a number of reasons. The form can be used to help structure the return to work interview and acts as a record of the reasons for absence. It can also help confirm that the employee has recovered sufficiently to return to work, or to identify where any adjustments may be needed to support their return. The information in the forms can also be used to help employers to identify absence triggers and patterns, and should help deter malingering and ‘sickies’.

    Importantly, employers should remember that the objective of the return to work process is to promote an open and encouraging environment that supports employees as they come back to work from a period of leave, rather than being used as a ‘witch-hunt’ to demonise individuals.

     

    What should the return to work form contain?

    A standard return to work form should be developed and used consistently across the organisation to avoid potential issues such as discrimination complaints.

    It is advisable for the return to work form to be divided into two sections. The first is to be completed by the employee on their return to work, as self-certification for their absence. The second part should be completed by the employer during the return to work interview, as a record of the discussion to be retained on the employee’s file to help with any potential absence issues.

    The specific information to capture will depend on the size and type of your organisation, but in general you would be looking to capture the following information:

     

    Part 1 – for the employee to complete:

    This part of the form should be signed and dated by the employee and returned to the relevant individual, such as the HR manager.

    Employee name:
    Department:
    Date of first day of absence:
    Date of last day of absence:
    Return to work date:
    Number of working days absent:
    Whop did you notify of your absence:
    Reason for absence:

    Part 2 – for the employer to complete:

    Name & position of person completing the form:
    Date of return to work interview:
    Employee’s line manager name:
    Has the employee provided medical certification in relation to this period of absence? Yes / No
    If so, please provide details:
    Summary of the return to work interview:

    The form should then be signed and dated by both the employee and the employer.

    Absence issues

    If an employee is not meeting their employer’s standards, then the matter should be investigated further. This is usually done prior to deciding on whether to take the next step (e.g. dismissal). The standards expected by an employee should be set out in the employees written terms of employment, or perhaps the staff handbook.

    An employer may take further action in cases where:

    • The employee has taken many sick days
    • Is absent without permission – otherwise called ‘unauthorised’ absence
    • Is struggling to do their job

    In these cases, an employer will need to decide whether a disciplinary procedure applies or a capability process is more appropriate; specifically, whether the issue is one of conduct or capability.

    Conduct relates to an employee’s behaviour at work – the general consensus seems to be where an individual has control over their actions, e.g. calling in sick when they are not ill, will amount to a matter of conduct. In this instance, the employer should follow their disciplinary procedure.

    Capability centres around the employee’s ability to do the job. In contrast to conduct, if an employee has no control over their actions, e.g. they have become ill such as it renders them unable to perform their job even with the help of adjustments or support, then it is a matter of capability. For a capability issue, an employer should follow a capability procedure (if there is one), or performance management procedure.

    It is not always clear whether an employee’s performance is due to capability or conduct. But an employer should always carry out a full and fair procedure before deciding on taking any action such as dismissal.

     

    Managing capability issues

    An employer should follow a procedure based on encouraging improvement in order to give the employee the opportunity to progress and avoid further problems cropping up. Providing the employee with support by making changes to their work, arranging occupational therapy or training could help them to do their job better and avoid the prospect of dismissal.

     

    Performance management

    This is an arrangement used by employers to maintain and improve their workforce’s performance. It can involve:

    • Employees being set clear and agreed performance targets
    • Regular performance meetings
    • Assessing employees against their measured target
    • Monitoring performance

     

    Whilst setting staff specific objectives and targets can be part of good performance management, great care must be exercised to ensure that any performance measurements set for staff are fair and not discriminatory. Promoting due diligence in this regard will help to eliminate the scope for employment tribunal claims.

     

    Dealing with complaints about the return to work

    If a member of staff has any concerns or is dissatisfied about the way in which their return to work has been handled they may decide to raise a grievance. Such a grievance must follow the organisation’s grievance procedures.

    Great care must be taken when moving to dismissal for repeated conduct offenders to follow the company’s dismissal procedures, failure to do so may result in an employment tribunal claim. When deciding upon cases of capability, you must be careful not to discriminate unfavourably against an employee as safeguarded by The Equality Act 2010, otherwise you may find your organisation defending a claim for discrimination in the civil courts.

     

    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.

     

    Author

    Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.

    Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing & Content Agency for the Professional Services Sector.

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