Returning to work after a brain injury
Although not everyone who has experienced a brain injury is able to return to work, many do and it can be a challenging process to get to grips with.
Whether the person with the brain injury is returning after a few months or a few years, it’s not just adjusting the mind set to going back to a sense of normality, but making physical changes too.
With the right support and planning from that person’s employer, returning to work should be a stress-free and positive experience.
What rights do I have if I am now ready to return to work after a brain injury?
Employees do not have to give details of a brain injury to their employer, but it’s advised that they do.
Under the Equality Act 2010, employers have an obligation to make ‘reasonable adjustments’ in the workplace for employees with a disability. A person is disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
The adjustments an employee with a brain injury needs will vary depending on the nature of the injury and the effect it has on their ability to do their job. Reasonable adjustments include being flexible about the employee’s working hours, providing modified equipment and transferring them to a different role.
Before returning to work, it may be useful for the employee and employer to discuss the impact of the injury and what difficulties they expect in their job. This will assist the employer to make reasonable adjustments.
If my employer can’t accommodate my needs, can I be dismissed from my job?
There is a proactive duty on an employer to try to make reasonable adjustments to accommodate the employee. However, this is not always possible; is it beyond what is reasonable?
In circumstances where it is not possible, ‘capability’ is a fair reason for dismissal. If you are no longer capable of doing the job you were employed to do, it is possible that you can be dismissed from that role.
Having said this, your employer still has to use a fair and reasonable procedure to decide whether to dismiss someone. If they don’t follow that procedure, an employee could potentially make a claim for unfair dismissal, even if the reason was valid. Furthermore, your employer must act in such a way that it not discriminatory. If you feel you have been unfairly dismissed and/or discriminated against, it is vital to seek legal advice from a specialist employment solicitor as soon as possible, as employment tribunal deadlines are very tight and strict.
I need time off work to care for someone who has a brain injury. What rights do I have?
If a loved one has suffered a brain injury, you should let your employer know about the situation.
If you have to take time off work to care for a loved one, check if your employment contract has a scheme for carers. A company handbook should contain details of this. If the contract doesn’t offer compassionate leave, an employer has no legal obligation to grant leave. However, the Employment Act 2002 gives carers a legal right to ask their employer for flexible working hours. Whilst there is no legal obligation for the employer to grant this request, there must be a legitimate business reason for refusing.
If you think you a flexible working request has been unreasonably refused, you should seek advice from an employment lawyer.
Furthermore, the Equality Act 2010 protects you from discrimination and harassment at work due to your caring duties. For instance, if your employer treats you less favourably because of your caring responsibilities.
If my employer is not being accommodating whilst off sick or on my return to work, what are my rights?
Reasonable adjustments must be considered on an individual basis and at the cost of the employer. It’s the employer’s responsibility to show that the adjustments are unreasonable. If the employer believes an adjustment is unreasonable, they should talk to the employee and try to find another option.
If an employer refuses to make reasonable adjustments, the employee may have a discrimination claim under the Equality Act 2010. They should seek advice from an employment law specialist as soon as possible.
If you or a loved one has suffered a brain injury and you have further questions about returning to work, our employment solicitors in Bristol and South Gloucestershire can help.
Our Employment Law team can advise on both employee and employer relations. From reasonable adjustment policies, redundancy and unfair dismissal, to HR support and employment tribunals.
Our Personal Injury team are also proud to be panel members of the Brain Injury Group, with our solicitors acting for clients throughout the UK on a wide range of head and brain injury compensation claims.