Where an employee has asked for a phased return from long-term sickness absence, can the employer decrease his or her pay to reflect the reduced hours being worked?
Offering part-time hours to an employee who previously worked full time in order to facilitate a return to work after a period of long-term sickness absence can often be a positive and appropriate course of action. It enables the employee to ease back into work gently and may greatly assist him or her in making the transition back into normal working.
Contractually, there will be no obligation on the employer to continue full-time pay if the job is being done part time. Pay may therefore be reduced proportionately in accordance with the reduction in the employee's working hours. The issue will be whether the employee is prepared to agree to accept the change to his or her hours of work and rate of pay, whether on a temporary or a permanent basis. If the employee is agreeable to this, then the employer should ensure that the agreement is put in writing and signed before the employee returns to work. A unilateral change to the employee's working hours and/or pay without agreement would constitute a fundamental breach of contract, entitling the employee to take legal action against the employer.
Under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551), where a full-time employee returns to work part time after a period of absence of less than 12 months, he or she is entitled to the same pay and benefits that applied to his or her full-time job on a pro rata basis. This means that, apart from making pro rata reductions in accordance with the number of hours worked, the employer may not change the employee's pay or other contractual benefits to his or her detriment just because the employee is now working part time.