The Independent Garage Association (IGA) has published advice it gave to a member whose employee is refusing to return to their existing job role after a period of long-term sickness.
IGA member asks…
“We have an employee who is on long term sickness absence.
“We have tried to accommodate their return with reasonable adjustments, but the employee is simply refusing to return to the existing role and wants us to create a new position for them.
“We have no need for the position they wish to take on and therefore we are somewhat in a stalemate because the employee is adamant they are not resigning, but at the same time, is refusing to return to work unless we create this new role.
“How can we proceed?”
When an employee is on long term sickness absence, the company needs to be mindful of termination to avoid unfair dismissal, if they have more than two years’ continuous service, and potential disability discrimination.
In the circumstances therefore, employers should follow a fair procedure when assessing an employee’s return to work and consider what, if any, reasonable adjustments are needed.
Most employers would obtain medical advice through the use of a medical report from either a GP or occupational health provider.
If the medical report provides that the employee can return subject to reasonable adjustments, and those reasonable adjustments can be facilitated, however the employee still refuses to return, then arguably the company is in a position whereby they are looking at a capability dismissal or a dismissal for ‘some other substantial reason’ (SOSR).
As the employee is adamant they are not resigning, then legally they cannot be treated as having resigned so that option would be disregarded.
In the circumstances therefore, a further meeting should be held to discuss the contents of the medical report and assess whether, in light of their refusal to return, a dismissal is necessary.
You would therefore be looking to give them the option as remaining an employee and returning to work with the adjustments that are put in place, or if the employee can’t see themselves returning now, or in the near future, and they don’t believe the adjustments could get them back into work, then you would be looking to dismiss on the grounds of capability.
It would be important at all stages of meetings to discuss the medical report and the situation thereafter, that you have minutes of all the meetings to show your paper trail.
In addition, a reasonable adjustment in itself would be extending the right to be accompanied to having a family or friend member present in all meetings to discuss their return/dismissal.
In any event, if the above situation or similar arises, we would always recommend that you take advice as each case will always be fact specific.
For further information about the IGA, click ‘more details’ below.