Phased returns and sick pay

An employee who agrees to a phased return work on temporarily reduced hours will lose out financially, unless an agreement can be reached to pay sick pay for the working hours the employee is not yet fit to perform. The new DWP Fit Note Guidance says: “If your employee returns to work on reduced hours, you should consider whether your employee may be financially disadvantaged. In such cases, you may decide to pay sick pay for the hours not worked, or to pay full pay despite the reduced hours.”

In some workplaces where unions are recognised, collective agreements have been negotiated to provide a financial cushion in the event of a phased return from long-term sick leave. The case of Secretary of State for Work and Pensions (Job Centre Plus) v Higgins [2013] UKEAT/0579/12/DM, involved this kind of policy, operated by Job Centre Plus. In this case, a Fit Note said Mr Higgins would be fit to return to his normal hours if he built up those hours gradually over three months. Job Centre Plus operated a Return To Work policy known as the “Part Time Attendance on Medical Grounds” (PTMG) policy. The policy allowed for a transitional return over 13 weeks, during which an employee would work part-time but continue to be paid contractual sick pay for the hours they were not yet fit to work. Higgins resigned and claimed disability discrimination because his employer refused to promise to extend the policy beyond 13 weeks in the event that he was not yet well enough to return to work at the end of the 13-week period.

The EAT said the PTMG policy was a reasonable adjustment. It was not reasonable to expect the employer to go further and to confirm, even before the phased return had started, that if necessary it could extend beyond 13 weeks.