Medical Suspension awaiting reasonable adjustments - General - HR in Schools and Academies

7 Medical Suspension awaiting reasonable adjustments

28 Nov, 2019 14:13

Dear colleagues - I have looked at this topic on previous forum threads and would welcome latest thoughts.

The ERA has specific definitions of when Medical Suspension should be considered. Teachers Unions during a complex absence due to disability case have informed a teacher that she should stay away from school on medical suspension whilst employer brings in specialist medical experts to assess workplace, purchase adjustments and then re assess workplace before signing it off as suitable.

In order to try and ensure this employee is not disadvantaged we have sought rather more input from OH than we would usually do and are now confident that everything is in place for a return. We did not use the suppliers or medical experts recommended by the union of course.

A previous trial return to work and this new return will be phased and fully paid - so a generous phased return to allow trialling the new equipment and getting back to the workplace in a steady and monitored way is now in place. So far I have challenged medical suspension which the union are still requesting with the argument "that we would rather support a fully paid phased return than to insist the employee should remain away from work on suspension - surely this is a far more positive stance to take - the employee has suffered no financial detriment and is now back working minimal hours but is at least in the workplace with support in place - surely the union would prefer to see this pro active action rather than suspension"

This is the first time I have heard an employee and a union seek suspension on medical grounds - I have moved to education from the private sector and on occasions agreed this following medical advice regarding pregnant employees or when there is a serious health and safety hazard. I have researched some MAT policies and several refer to the need to use medical suspension whilst adjustments are being ordered / arranged. Several unions also state that sickness entitlement should not be counted when adjustments are awaited.

If the legislation or practice has changed regarding medical suspension a further concern is that I am not sure the adjustments will have any impact on future attendance patterns - so was the lack of them at one point a hazard - if so now that the hazard is removed should we expect full attendance. Again that is a further argument in this case for a phased return. Your thoughts appreciated. Amanda

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David Perry | 0 Posts

28 Nov, 2019 15:52

I'm not quite clear from you post but do you know the employee wants 'medical suspension'?
Or is it just the union?
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Amanda | 0 Posts

28 Nov, 2019 15:56

In reply to David Perry:
Hi David - absolutely the employee wants it. The union have explained that medical suspension will extend her entitlement to full sick pay by the period of time she was awaiting the medical workplace assessment, the ordering and fitting of equipment and the O H re-assessment.
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Niki | 0 Posts

28 Nov, 2019 16:06

If you are going to medically suspend a member of staff you need to make sure that they get the sickness entitlement they are entitled to. It is also worth looking into phased return to work or is it a permanent thing?
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David | 0 Posts

29 Nov, 2019 09:56

In reply to Niki:

Hi Amanda

neu.org.uk/.../reasonable-adjustments-work
seems to be the source of this assertion, but of course what it conspicuously lacks is any explanation or legal or other authority as to why tHis should apply.

The ERA law on medical suspension has IMHO nothing whatsoever to do with someone unfit to work as a result of a personal disability until the employer makes recommended ‘reasonable adjustments’ to facilitate such a return. These ERA provisions apply to a narrow range of circumstances relating to eg where their personal levels of exposure to toxic or hazardous substances in the workplace make it impossible for them to attend their normal work and thus risk further exposure. So if there is no alternative non hazardous work available they have to be suspended on full pay on medical grounds under these ERA provisions. Any case law arising from these is very sparse.

So, unless there’s any other good authority for this assertion, for example any particular contractual or similar provisions relating to the employee’s personal terms and conditions of employment, I’d argue that it’s without foundation and if they disagree ask them to come up with the reasons why it isn’t.
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Amanda | 0 Posts

29 Nov, 2019 11:02

In reply to David:
Thank you David. I saw this too when I researched where the advice may have come from. And from this I noticed that some schools / Academy Trusts have incorporated this into their policies. When I have time I might look at other unionised organisations and see if they have done the same. We will not be doing this. It muddies waters and give rise to a number of claims and incur significant cost. I would much rather spend the funds on supporting a return rather than suspending from work (unless the ERA definition applies of course).

The union stated when challenged that the employer, despite its best efforts had failed to provide a safe working space so were in effect preventing the employee from returning to work and therefore medical suspension applies. We have responded that it is not for the union to suspend an employee and the reasoning does not fall within the legal definition of medical suspension. It is interesting that the employee continued to submit Med certs albeit the last one did state "awaiting further adjustments in the workplace"

I won't relay the lengthy tale around the scope and details of the reasonable adjustments and I doubt that in this case they are going to resolve the issue regardless. Financially no detriment has occurred (as yet) as a longer fully paid phased return has been put in place and if sickness recommences we can at least now refer back to the adjustments being in place.

I have a feeling we are going to see more cases like this in the future.
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David | 0 Posts

29 Nov, 2019 13:26

In reply to Amanda:
Hi Amanda
Noted, thanks: that's of course just the Union's (most would say, mistaken) interpretation of the ERA. Seems daft to me on the part of any educational employer to write this into t&c, but there you go.
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Elizabeth Divver | 0 Posts

29 Nov, 2019 15:48

In reply to David:

There are a lot of people who don't know the definition of medical suspension. It is a phrase that gets bandied about in all sorts of circumstances. It is something I learned about from these forums.
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