Letter advising employee to remain at home until medical evidence obtained about suitability to work

It’s not unusual for some employees to want to return to work after a bout of sickness absence before they are well enough to do so, or to refuse to go off sick when they’re clearly not fit to work. More often than not, this is for financial reasons, for example if they only receive statutory sick pay (SSP) during sickness absence. Use our letter advising employee to remain at home until medical evidence obtained about suitability to work to help you with this situation.

Too sick to work

You’ve probably come across the scenario where an employee has been absent on sick leave, usually long-term after something quite serious, their latest statement of fitness for work (fit note) expires and so they say they are coming back to work, but when they arrive it’s obvious they’re not well enough. The difficulty is that if there is no fit note certifying them as sick, the employee is entitled to return to work and there is no legal obligation on doctors or other healthcare professionals to certify an employee as physically/mentally fit to return. So the employee can just try to return once a fit note expires, even if they’re not well enough to do so. The alternative scenario is where an employee refuses to be absent on sick leave when they are clearly ill and not fit to be at work. Again, the doctor or other healthcare professional is under no obligation to certify the employee as sick.

You owe both statutory and common law health and safety obligations to your employees, and this includes not just the one who is sick but your other staff as well. Having a sick employee at work could easily endanger the health and safety of others (as well as themselves), for example, if they operate machinery.

Medical confirmation of fitness

What you should do is have a meeting with the employee to discuss your concerns about their health (this doesn’t have to be anything formal) and then ask them to obtain medical confirmation that they’re fit to work in their particular job role, or alternatively a fit note signing them off sick. In the meantime, you can ask them to remain at home, but note this will have to be on full pay, not SSP rates. Our Letter Advising Employee to Remain at Home until Medical Evidence Obtained about Suitability to Work can be used for this purpose.  Bear in mind you will need to have regard to the implied term of mutual trust and confidence when sending an employee home in these circumstances, so your concerns about their health must be reasonable and legitimate, depending on the particular job duties they fulfil and the risks they potentially pose.

Alternative job duties

As an alternative to sending the employee home, also consider whether there are any other job duties the employee could carry out which do not pose any health and safety risks, until medical confirmation is obtained of fitness in their normal job role. You would still need to keep the employee on their normal pay rates here and you may need their consent to carry out alternative duties if they’re not within the scope of their job description.