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A brain injured man returning to work in a car body shop after brain injury

If you have suffered a brain injury, you may have concerns about returning to work – not everyone who has suffered a brain injury is able to return to work, but many people do return to their pre-accident employment or a new role. Whether you are returning after a few months or a few years, it can be a milestone moment in your recovery journey, but may not be without its challenges, both mentally and physically.

With the right support and planning from your employer, returning to work should be a stress-free and positive experience.

I’m ready to return to work after my brain injury, what now?

Your employer has an obligation under the Equality Act 2010 to make ‘reasonable adjustments’ in the workplace for employees with a disability (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).

Reasonable adjustments will be different for every person and will vary depending on the nature of your injury and the effect it has on your ability to do your job. It might include a flexible or graduated return to work, performing a different role within the company or the provision of equipment to assist you in the work place.

Whilst you are not obliged to give details of your brain injury to your employer, it is advisable to do so. You should try to have a discussion with your employer, and the occupation health department if your employer has one, about the impact of your injury and what difficulties you may experience on your return to work, to assist your employer to make reasonable adjustments.

What if my employer can’t accommodate my needs? Can I be dismissed from my job?

Whilst your employer has a duty to make reasonable adjustments to assist your return to work, this may not always be possible. Reasonable adjustments must be considered on an individual basis and at your employer’s expense. It is their responsibility to show that any adjustments would be unreasonable, and they should talk to you to explain and try to find an alternative option. A refusal to make reasonable adjustments could give rise to a discrimination claim under the Equality act 2010.

Capability (when you are no longer capable of doing the job you are employed to do) is a fair reason for dismissal. Your employer must however still use a fair and reasonable procedure to decide whether to dismiss you and if they do not follow such a procedure, you could potentially make a claim for unfair dismissal, even if the reason for dismissal is valid.
Your employer must also act in a way that is not discriminatory to you. If you feel you have been unfairly dismissed and/or discriminated against, its advisable to speak to a specialist employment solicitor as soon as possible – employment tribunal deadlines are very tight and strict.

What are my rights if I need time off work to care for someone who has a brain injury?

If a close family member has suffered a brain injury, you should inform your employer of the situation. If you need time off work to care for them, you should firstly check your contract of employment to see if there is provision to take compassionate leave – this may also be detailed in your company handbook. If your contract of employment doesn’t offer compassionate leave, then your employer has no legal obligation to grant such leave. However, under the Employment Act 2002, you do have a legal right to ask your employer to allow you to work flexible hours – this isn’t guaranteed, your employer has no legal obligation to agree to such a request, but they must have a legitimate business reason for refusing.

The Equality Act 2010 also protects you from discrimination and harassment at work due to your caring duties. If you have requested flexible working and believe this has been unreasonably refused, or you feel your employer is treating you less favourably because of your caring responsibilities, you should speak to an employment lawyer.

How Brain Injury Group can assist

If you have concerns about your return to work, or your treatment whilst caring for a loved one with a brain injury, our member law firms can assist. Specialist employment lawyers can advise on both employee and employer relations including reasonable adjustment policies, redundancy and unfair dismissal, to HR support and employment tribunals.

Find out more about who we can help with employment following brain injury.

With thanks to Samantha Castle of member law firm Barcan+Kirby for her assistance with this article. Samantha assists clients with both employment matters and personal injury claims.

Barcan+Kirby are based in Bristol but assist individuals across England and Wales on a range of legal matters.

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