Work and the workplace can be a large part of people’s lives. After a brain injury, returning to work and employment can seem daunting but it can also be a useful part of rehabilitation.
Returning to work after brain injury
Following a brain injury, it’s likely that you will be unable to immediately return to work, which can cause worry and stress. Depending on the severity of your brain injury, returning to work can be a milestone moment; for some, they will be able to return to their previous role, with little or no adjustment needed; for others, it may not be possible to return to their previous job or adjustments may need to be made to allow a safe return to work; for others, a return to work may never be possible.
Talking to an employment lawyer early in the recovery journey could help to plan your return to work, your rights to time off from work, rights in relation to sickness absence, disciplinary and capability procedures, discrimination or even termination of your employment.
What can you expect from your employer?
When you feel ready to return to work, it may be that a phased return is required, to ease you back into your role without becoming overwhelmed. Your employer may have a policy dealing with this in their handbook, as part of their absence policy which could include steps to be taken to help you get back into work.
Under the Equality Act 2010 your employer has a legal duty to make reasonable adjustments to help facilitate a successful return to work, on the basis that your brain injury amounts to a disability. Reasonable adjustments will be different for every person and every workplace but might include a graduated return to full time working hours, a different role within the company, flexible or reduced working hours, regular meetings to monitor your return and provision of equipment that may assist you in the workplace.
If your company has an Occupational Health department they should be involved in your return to work, to provide early and ongoing support. Additionally, if you are working with a case manager and/or NHS rehabilitation team, they should support you and communicate with your employer to assist with your return to work.
Whatever happens during this period, it is important to keep the channel of communication open between you and your employer. This might mean regular catch-ups with your line manager or a person from HR so that any problems or difficulties can be identified early and further adjustments made as required.
Capability and performance management at work after a brain injury
It is important to speak to your employer if you are struggling with the adjustment back to work, if your employer feels that you are not performing as well as they need you to, they may decide to take steps to investigate your performance further.
They may either conduct a capability procedure or a performance management procedure. This may be set out as a formal policy in the staff handbook and will involve your employer carrying out an investigation into your ability to do your job. This should not be intended as a criticism and they should recognise that underperformance is not something you have control over.
Whichever procedure they choose to follow, it should involve meeting with you to discuss the issues. Targets should be set with an agreed date for when the target should be met. You will then have regular reviews to establish how well you are keeping up with those targets.
At the end of the process, a decision will be made about whether you will continue with your role or whether your employment will be terminated.
If your employer fails to follow a formal process and decides to dismiss you, then you may be able to bring an unfair dismissal claim against them.
Discrimination at work following a brain injury
Your employer has a duty not to discriminate against you because of any disability or something arising from a disability, which generally means that you must not be treated less favourably than someone without a disability. If you are treated unfavourably by your employer because of your disability or something linked to it, you may be able to bring a claim for discrimination. Examples of actions which could give rise to such a claim would be if your employer terminates your employment or does not agree to make reasonable adjustments to your role.
If you feel you have been discriminated against, contact us for advice.
Termination of employment
If your employment is terminating, you may be asked to sign a settlement agreement, which can be used to end your employment on agreed terms or resolve an employment dispute. Signing such an agreement waives your rights to take your employer to court or an employment tribunal, so it is a legal requirement that you receive independent legal advice on the terms of any such settlement agreement.
Settlement agreements can be complex, and you will need expert advice. Our specialist employment lawyers will guide you through the agreement and make sure you understand the terms and get the best possible package.
Find an employment specialist
Members of Brain Injury Group have been chosen for their specialist knowledge and experience of working with clients who have sustained a brain injury. By choosing one of our member firms, you can be sure that you will be assisted by someone who has access to a range of services including welfare benefit advisers, case managers, education lawyers, Court of Protection specialists and a whole range of other legal advice, ensuring clients receive a joined-up service to support and help rebuild lives following a brain injury.