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Sickness absence – how is pay arranged for an employee that is on reduced hours due to a fit note – full pay or the pay for the hours they are working?

An employee who is returning to work on a phased basis may have been absent for some time and employers are understandably nervous of the possibility of any disability discrimination issues. Pay arrangements in this situation will probably not have been expressly agreed between the parties in the employee’s contract and will therefore need to be agreed and clearly set out at the point of the employee returning to work.  It is unlikely that an employer would be contractually obliged to pay an employee returning on a phased basis full pay if they are not working all of their contractual hours.  It is also rare that doing so would be a reasonable adjustment in the event that the employee has a disability.  We would recommend that the parties should agree a pro rata rate of pay for the work actually done.  Remember that a day on which any work is done will not count as a sick day for statutory sick pay purposes and so that could not be used to top up the employee’s pay.  If there is a right to contractual sick pay, you will need to consider if there are any terms about whether that right continues during a phased return on any non-working days but remember that the overall aim is to help an employee return to work and if an employee could earn more by being at home sick than coming back to work on a phased return basis, cutting that pay is unlikely to encourage them

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