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Problems can arise where an employee wishes to return to work prior to the expiry of a current fit note which states that they are unfit to work. This can lead to uncertainty about the employee's fitness to return and concern that their return could present a health and safety risk to the employee or others.
In this situation, it would usually be appropriate to obtain medical advice and undertake a risk assessment prior to sanctioning their return to the workplace.
If the evidence is obtained from the employee’s GP, it should be noted that the GP is unable to use the statutory Statement of Fitness for Work to confirm that an employee is fit to work. The form only gives the GP the option of either stating that the employee is unfit to work, or that they "may be fit". There is therefore no obvious mechanism for a GP to confirm an employee’s fitness to return. DWP guidance for employers states that an employee does not need to be signed back by their GP before returning to work, even where they have a current fit note. If an employee recovers earlier than anticipated then their GP may be willing to provide a letter to that effect. If the GP does provide such a letter then this alone may provide sufficient information to confirm the employee is fit to return and allay any health and safety concerns.
If the employee is unable or unwilling to provide evidence that they are sufficiently recovered then the employer is not obliged to allow them to return to work. Equally if an employee does provide evidence of their fitness to work but the employer continues to have reasonable concerns about their return to work then it may be appropriate to ask them to remain at home whilst the situation is clarified. However, such a decision could amount to a breach of trust and confidence, so it is important that decisions are made on a case-by-case basis having regard to the evidence available and the potential risks involved in the employee's return.
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Partners Employment Lawyers is not a firm of solicitors. Members of Partners Employment Lawyers are consultants at Excello Law Limited and legal services are provided by Excello Law Limited which is authorised and regulated by the Solicitors Regulation Authority under SRA number 652733.
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