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Email: chris.beck@markallengroup.com
expectation that you were
binding yourself to continue to
pay enhanced redundancy in the
future or whether this was very
much a discretionary ‘one off’.
Under employment law
there is a concept of ‘custom
and practice’ whereby even
if not expressly set out in
writing, policies such as paying
enhanced redundancy, or, for
example, enhanced sick pay
or family leave pay become
‘implied’ into employees’
contracts. However, the bar for
terms being implied in this way
is really quite high and based on
the case law in this area, such
terms need to be ‘reasonable,
notorious and certain’, rather
than it just being a case of this
having ‘happened’ in the past.
Assuming there is nothing
documented, or nothing to
suggest that it was ever your
intention to bind yourselves to
paying enhanced redundancy
payments in the future, the
employees would just be
entitled to receive statutory
redundancy pay.
From an employee relations
perspective it would be useful
to explain that, unfortunately
we are in very different times
right now and whilst we were in
a position to be more generous
four years ago, and when we
were dealing with a smallscale
exercise, sadly we are
not in a position to make any
enhancements on this occasion.
One member of our
engineering team was
infected with COVID-19
in April, and spent time in
intensive care on a ventilator.
Happily, he’s made an
excellent recovery and is now
back at work. However, he still
suffers from breathlessness
and fatigue, and has been off
sick for several prolonged
periods in recent months. His
work is quite physical and
demanding, but when he came
back to work, he insisted he
was fit enough to get back
to it. Every time we suggest
putting him on an easier task,
he gets offended and overexerts
himself. What duty of
care do we have as employers
to ensure he doesn’t over-do it
until he’s fully recovered?
Prior to an employee returning
to work after a prolonged
absence or serious illness,
employers should complete a
return to work assessment in
consultation with the employee
to determine if they are ready
and able to resume their normal
work activities. Consider any
recommendations from the
employee’s doctor and whether
they may need support when
they first return.
The employer and employee
should agree on a plan, which
could entail a phased return
to work and or reduced hours,
lighter duties or different
duties. It is important to
regularly review the employee’s
performance, health and make
workplace adjustments if
required in consultation with
the employee, so both parties
agree a way forward without
putting the employee at risk.
If you do have continued
concerns that the employee may
be exerting themselves more, or
undertaking tasks beyond their
physical capabilities, then it may
be beneficial to seek consent to
contact the employee’s GP and/
or to refer them to occupational
health to obtain a specialist
opinion on what tasks can safely
be undertaken.
www.manufacturingmanagement.co.uk 13
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