Can employer force employee to take sick leave?

(24 Posts)
FlipWreck Fri 05-Jun-15 16:02:35

Hi - NC'd for this, but I'm a regular and have had excellent advice from this board before. Please can someone answer this - can an employer force an employee onto sick leave? The employee has cancer, but has a fit note from their doctor saying they are well enough to work and undertake light duties. If the employer tells them not to come into work, can they also move them onto sick leave (which would reduce the employee's entitlement to their contractual amount of sick leave)? TIA.

lougle Fri 05-Jun-15 16:14:13

Yes. If the employer doesn't have scope for light duties then they can enforce sick leave.

lougle Fri 05-Jun-15 16:16:06

It isn't the same as pregnancy. If work can't accommodate a pregnant woman's need for light duties, they must suspend on full pay (to avoid sec discrimination).

FlipWreck Fri 05-Jun-15 16:23:39

Thanks for replying lougle, but pregnancy isn't involved here. The employee has cancer, and is therefore offered protection by the Disability Discrimination Act. Can anyone answer my original question please? Can an employee be forced onto sick leave?

WeAreEternal Fri 05-Jun-15 16:59:25

This website seems to have some good information.

flowery Fri 05-Jun-15 18:02:08

Who are you in this scenario OP?

FlipWreck Fri 05-Jun-15 18:33:51

Hi Flowery. I was hoping you'd make an appearance here smile. I'm partner of employee.

FlipWreck Fri 05-Jun-15 18:36:59

WeAreEternal, thank you, that website is v useful.

lougle Fri 05-Jun-15 18:43:18

FlipWreck I appreciate that. I was just giving it as an example, as many people are aware that you can't be forced to go sick if your pregnancy stops you from performing your job role. However, it isn't the case for disability (although there is the case for reasonable adjustment).

This pack from the TUC is quite helpful. It shows that there is no definitive answer to your question. If the employer is shown to have capacity for the employee to have light duties, then they should do so (and not to do so would be DD). If the employer does not have capacity (ie. there are no light duties that could be done, even with additional training) then they have no obligation to do so.

There is talk in the document about 'disability related absence' and while there is the provision to include a disability related absence clause, the subject of giving pay beyond the exhaustion of paid sick leave entitlement because the absence is disability related has been tested and denied.

FlipWreck Fri 05-Jun-15 19:00:36

Thanks ligule. For the further avoidance of doubt, employer wants to be at work, consultant and doctor support this.

lougle Fri 05-Jun-15 19:13:37

Can you give any (vague if necessary) indication of the line of work?

Lunastarfish Fri 05-Jun-15 19:19:06

It's probably the Equality Act 2010 you want to be referring to rather than the DDA.

There is an obligation to make reasonable adjustments when someone has a disability within the meaning of the EA but the important word is 'reasonable' so if light duties do not exist, or cannot be arranged, then the employer would not necessarily be acting unlawfully. However, is not possible to answer your query based on the info provided.

I suggest the person you are referring to makes an appointment with the CAB, a solicitor or their trade union for detailed advice.

FlipWreck Fri 05-Jun-15 19:53:22

Line of work is office-based/admin, with some travel, but travel which employee feels is manageable, and is happy to continue doing, with a reasonable adjustment of allowing more time for travel as required.

Re reasonable adjustments, employer did originally agree adjustments, e.g. getting someone else to cover some of the work, and agreeing more time for travel. Employer has now suggested that employee doesn't work at all, but is yet to confirm whether this is on sick pay or paid leave.

Employee contractually is entitled to six months full pay, but wants to 'save' this until needed. They are able and want to be at work, but concerned that employer will force them onto sick leave, which would reduce the period of paid sick leave that's available when needed (during treatment and when they are unable to work).

Yes, Lunarstar, absolutely right, it is the Equality Act.

flowery Fri 05-Jun-15 21:22:18

I know it's not relevant to you OP but can I just clarify, if a pregnant employee is not well enough to do her job and her employer cannot accommodate the recommendations on a fit note, they are not obliged to suspend her on full pay.

If a pregnant woman's role presents health and safety risks and adjustments to make the role safe are not possible and no alternative work can be found, then she must be suspended on full pay.

OP it's not really about being forced on to sick leave. Fit notes are basically saying that the employee is not fit to do the job unless the recommended adjustments are made. The employer isn't obliged to make those adjustments, meaning that if they either can't or choose not to, the employee is not fit to work.

Because your partner has cancer and therefore classes as having a disability, the employer can't just decide not to make adjustments, but must make them if they are reasonable in the circumstances.

If the employer is saying that the recommended adjustments aren't possible/reasonable, your partner should ensure the employer confirms why that is the case.

worridmum Sat 06-Jun-15 00:55:41

Sorry for this as this is a slight hijack can a pregnant woman claim that work is not suitable if it would force her to have an 40 mile extra commute to work?

(currently she has a job that is not safe for a pregent person so the company is temporaly moving her to a different lab were the risk element is not an issue but she can contine doing her job, but she doesnt want to do the communte can she argue that she has to be suspand on full pay as that would be her prefence rather than the massive commute )

FlipWreck Sat 06-Jun-15 09:06:46

Thank you Flowery. The employer had made and agreed the adjustments required but then said the employee shouldn't report for work, because they didn't think he was well enough. We'd like to know if an employer can make a decision about an employee's health, particularly in the absence of an OH assessment (which they later arranged), and in view that my DP has submitted a fit note saying that he is fit for work with light duties and amended hours. Thanks again flowers.

FlipWreck Sat 06-Jun-15 10:41:28

Sorry, should clarify OH assessment hasn't taken place yet.

flowery Sun 07-Jun-15 10:11:26

Well I would say that if he has a fit note saying he's fit for light duties which his employer can and is accommodating, then if they don't want him to attend working pending an OH assessment that shouldn't come out of his occupational sick pay.

FlipWreck Tue 09-Jun-15 13:36:40

Thank you again Flowery. I will update after OH assessment.

maybetomorrow22 Wed 10-Jun-15 22:52:29

I know some employers insist on a medical suspension until further opinion is sought(OH) especially when the employee has declared themselves fit and they disagree. When the absence doesn't affect sick leave.

Would MacMillan nurses be able to offer assistance?

FlipWreck Fri 28-Aug-15 10:18:48

Sorry, I know I said I would update this - if anyone is even still interested! It's been a bit of a saga, but after two OH assessments, DP is meeting employer today to discuss reasonable adjustments. Reasonable adjustments are basically fewer hours and working 5 days a week, not 6.

KiwiJude Mon 31-Aug-15 01:19:39

How did the meeting go FlipWreck?

Pixie1975 Mon 31-Aug-15 11:24:18

They can suspend you and put you on sick leave I believe, you will be paid your full wages though.

FlipWreck Tue 08-Sep-15 22:44:25

Thanks KiwiJude - meeting was ok, they have agreed to have cover on stand by which means he can work fewer hours/days as required. He will have to have further regular OH assessments.

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