How to Manage a Phased Return After Long Absence

In a recent case from the Court of Appeal, a judge has determined that an employee who “downs tools” and refuses to work can be fairly dismissed – even if he has a disability. The employee in question had been on absence leave for almost a year after back surgery. The employer said he should return to a reduced role but he saw this as a demotion. He raised a grievance alleging disability discrimination and refused to carry out the limited role he had been given.

After a disciplinary procedure, the employer dismissed him for a fundamental breach of contract and gross insubordination. The employee brought claims for discrimination arising from a disability and unfair dismissal. The Court of Appeal found that the refusal to work was a breach of contract, for which the company was entitled to dismiss him.

There are some key points to consider from this case:

  1. Discuss plans for a return to work or reasonable adjustments with the employee and take their views on board. In this case, the employer intended a phased return to work for the employee’s benefit, so he could reintegrate gradually into the workplace. However, the employer should have told the employee that his perceived demotion was only temporary
  2. Develop a clear plan for the employee to resume full duties and agree a process for reviewing progress.
  3. Make sure there is medical evidence for any planned adjustments. In this case, although the misconduct dismissal was fair, the phased return was discriminatory because there was no actual medical justification for it. For an employer to insist of such a measure, it must be within the confines of a “reasonable adjustment” which is ONLY necessary when the absence arises out of a disability.
  4. Ensure that reasonable adjustments are consistent with the employment contract and the employee’s capabilities.

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