Is this garden leave??***Resolved***

**andyasw** · 31st March 2018, 11:41

My GP has said I'm fit to return to work and has signed a sick note to this effect, but my employer's OH doctor recommends my employer commissions a report from a neuro psychologist prior to any return.

As I'm fit to return I do not believe I should have to take any delay as annual leave and it can't be classed as sick leave, as I'm considered fit to work. What is the solution? Would this be "garden" leave?

**unclebulgaria67** · 31st March 2018, 13:26

Have they said it will be annual leave ?

Normally in this situation, a company will just pay you as normal similar to garden leave and you return to work when the employers OH are satisfied that you are safe to return to work. The reason it would not be annual leave, is that from a health and wellbeing point of view it would not be sensible or good practice to see your holiday time eaten up. You will need leave time during the year, so you have opportunity to recharge your batteries during the working year.

Suggest you contact your employers line manager to discuss and obtain written confirmation of the exact position.

**Emmzzi** · 31st March 2018, 13:30

"garden leave" is when you are not working yoru notice but need to be available

this is "medical suspension" and most organisations would resume wages

**stu007** · 1st April 2018, 04:26

Check in your Employment Contract for anything on Sicknesss/illness/Capability also check the Company Employees Handbook if they have one.

Are they using their Capability Policy???

1. When did you start employment with this Company?

2. How long have you been Employed with this Company to date?

**andyasw** · 1st April 2018, 15:58

So far HR haven't defined on what basis this period will be. I've been continuously employed with them for 20 years.

**ericsbrother** · 2nd April 2018, 13:03

are you currently being paid sick leave? if so i wouldnt expect that to change. If not then it can be read as you are currently suspended pending the outcome of a medical and they should pay you as they would be obliged to do so for any other reason.

**andyasw** · 2nd April 2018, 21:13

As it's the Easter weekend it's too soon for HR to have communicated with me so unable to respond with any detail. I hope to be hearing something this next week so shall post HRs response.

**ericsbrother** · 3rd April 2018, 13:11

so you dont know if you are currently being paid then?

**andyasw** · 3rd April 2018, 23:11

I should be on full pay until mid April.

**ericsbrother** · 5th April 2018, 09:58

the it will continue until they have done their deliberations. If they then refuse to let you return to work they should start proceeding to dismiss you on capability grounds or arrange a return t work in some graded return scheme agreed by OH and yourself. ita may be light duties or shorter hours but they cant do nothing and refuse to pay you,

**andyasw** · 11th April 2018, 20:06

Just to let everyone know I am still awaiting a response from my employers HR department.

**andyasw** · 15th April 2018, 21:55

received a letter icon

stating I would be on half pay from now on. @phoned

HR but the person I need to speak to is on leave.

**Emmzzi** · 16th April 2018, 08:32

Originally Posted by andyasw

received a letter icon

stating I would be on half pay from now on. @phoned

HR but the person I need to speak to is on leave.

Dear company,

as you are aware my doctor has signed me on as fit to work

I have been waiting for X weeks at your request for an additional medical check. I am fit and fully able to resume duties, yet about to be put on half pay.

This feels discriminatory. Please confirm I am in fact on medical suspension at your request and will continue to receive full pay, or confirm I can recommence duties immediately.

Yours,

you.

**andyasw** · 16th April 2018, 20:10

More news on this.

Today I received an email from HR. They say I am now on half pay because the Occupational Health doctor's recommendation that I have a psychological assessment, takes precedence over my GP who maintains I am medically fit to return to work on a phased return.

In addition it has been 17 days since my employer received the OH report and the recommendation but today they are finally making the actual referral.

I now feel compelled to seek legal advice.

**Emmzzi** · 16th April 2018, 23:56

If they think you have a mental health concern going in heavy handed may simply confirm their prejudice. I would send the letter first....

**andyasw** · 23rd April 2018, 21:11

An update.

I'm on half pay while awaiting the psychological assessment suggested by the OH doctor.

My employer says it would be too risky for me to return to the workplace without back to work suggestions from the psychologist (I've only had a stroke six months ago!).

Despite my argument that this is medical suspension and my GP saying I'm fit to return, my employer has overruled my GP.
My union say I have no option than to go along with what's happening and see my GP to ask him to say I'm sick with work related stress..

**Emmzzi** · 23rd April 2018, 23:05

what good will seeing your GP do?

push hard, very day, for that OH appointment. Not having it is costing you.

**Sangie595** · 25th April 2018, 09:38

If I might make an observation that had not been contributed hitherto, but which will cast some light on the subject,

whilst in no way suggesting that the employer is "morally correct", it should be pointed out that they are legally correct and the OP is laboring under a misapprehension that they have been signed as fit for work by their doctor.
According to what the OP says here, that is not what the GP has said.

"Fit for work" means returning 100% to your full job with all duties and hours. That is not what the GP said.
The for note must therefore say "may be fit for work on a phased return" or words to that effect.

That is ADVICE to the employer, so they are not refusing to accept the GP diagnosis or overruling it.
They are simply choosing not to comply with the advice.

In order for this to be a medical suspension, the employer must refuse permission to return to the FULL job in all its glory.
If the GP is willing to provide a fit note that says they are fully fit with no exceptions, then if the employer ignores that it becomes a medical suspension.
The unions hands are tied at the moment. The employer is legally correct.

**andyasw** · 25th April 2018, 10:23

Thanks Sangie595 - my fit note says I'm to return on a phased basis though, as you say, my employer has overruled the GP's opinion and has a right to do so. However, the OH doctor who suggested a neuropsychological assessment following my stroke could be carried out concurrently with a return to the workplace. The employer has chosen not to do this.

**Sangie595** · 25th April 2018, 21:48

And that's the problem - they have a right to do so.
The OH doctor also only gives advice.

I don't know if it's an agenda, or just being super cautious.
I don't have the information to make an informed guess about that.

What I can say is that the employer is acting within the law.
Nothing there to see ... Yet.

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