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.
The following guide for employers looks at how a return to work policy can be used to support an employee in coming back to work following long-term illness or serious injury.
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 health assessment 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.
What is the purpose of a return to work policy?
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 adjustments in 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 are the risks around mismanaging an employee’s return?
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 should be included 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.
What are return to work interviews?
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. This will usually be held on the employee’s first day back, providing 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 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. However, the prospect of returning to work following a prolonged absence can often be intimidating and stressful for an employee, so any discussions must be handled sensitively.
In most cases, regular follow-up checks must 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.
DavidsonMorris are experienced employment law specialists, with expertise in all areas of workforce management such as managing employees’ return to work through robust and supportive policies and procedures. Through our fixed fee employment law service, Triple A, employers gain unlimited access to our employment law expertise for a monthly fee. If you have a question or need advice on any aspect of returning to work, contact us.
Return to work policy FAQs
Is a return to work a legal requirement?
A return to work policy is not required by law, but it can help to discharge the employer’s duty to ensure the health and wellbeing of its workers, and to ensure that reasonable adjustments are implemented for those with disabilities.
Do employers have to do a return to work?
Strictly speaking, an employer does not have to follow any procedure when it comes to an employee returning to work from long-term sick leave. However, most reputable employers will have in place a process for supporting the employee’s return.
What happens in a return to work?
A return to work procedure will typically involve consideration of the employee’s fitness for work, based on any fit note or opinion of an occupational health specialist, as well as what adjustments can be made to accommodate the employee’s return.
When must a return to work be done?
If an employee is deemed fit for work, or potentially fit for work, subject to certain adjustments being made, this would be the ideal time to discuss with the employee their return to work and how the employer can help.
Last updated: 14 July 2022