Long term sick leave - rights when a company is trying to dismiss me.

(23 Posts)
ab90 Wed 13-Aug-14 17:46:30

My company is trying to dismiss me because of my illness. My illness was caused by the company. Please can anyone tell me my rights. Been told I have to see occupational health doctor face to face and then company will have a meeting with me and then they decide. Trouble is I haven't been given any other information.

What would the occupational health ask me?

Where does my own GP feed into this. My manager doesn't seem to know

I have constantly been asked by mangers when I'm going to come back into work - I don't know the answer to that if I get asked that question what do I say? I don't want to be backed into a corner and forced to give a date when I don't know.

Scabetty Wed 13-Aug-14 17:58:52

What does your Doctor say about return. They have a right to be kept informed so communication lines need to be kept open. Are you still being paid? Occupational Health will work with you and your employer to see how best to proceed. Do you have a Union Rep?

ab90 Wed 13-Aug-14 18:09:48

Scabetty- haven't spoken to my doc yet about will shortly go about this. Not being paid. Union rep useless - unofficially works behind the scenes for the interest of the company not for member

Scabetty Wed 13-Aug-14 18:33:46

You say the company caused your illness. Has this been confirmed/acknowledged by your GP and your employer. You may need to see a solicitor if you have no faith in your union rep. Occupational Health are there to see how they can work with you to get you back to work : shorter hours to begin with, lighter duties. What do you need to get back to work if you say they caused your illness - this is what you should be thinking about so you can discuss it with them. Can your GP provide a report?

ab90 Wed 13-Aug-14 18:52:42

Yes confirmed by my GP that was caused by work but company aren't wanting to accept they caused it.

Yes, GP can provide a report but do I tell occupational health doctor I want my GP to provide report and feed into this or should I wait and see what occ health doc does?

What should I tell a solicitor I want help on?.....sorry to ask silly question.

Antiopa12 Wed 13-Aug-14 19:23:53

OP go along to your local Citizens advice bureau. They can advise you on your legal rights in such a situation. They will fill you in on all the steps an employer must take when considering a sickness dismissal. The CAB will also advise you as to whether you can legally be described as having a disability and what your employment rights are in relation to this.
If you do have a legal case then check your house contents insurance to see if you have legal expenses Insurance. You could also phone ACAS.?

The bottom line is that you have a contract of work, the company has work for you to do and you are not able to fulfil your contract . A lot of people think that sickness will always protect them from dismissal but it does not. The company has to follow the correct procedures. Take with you to the CAB your contract of employment, your company policy on sickness and any letters you have received from your employer. You definitely need advice on your options regarding staying in employment and also whether you have a personal injury case.

NapoleonsNose Wed 13-Aug-14 19:38:13

Can you telephone the union's head office and ask for some advice? Explain that you have no confidence in your rep and need some help. There should be an organiser in your area who is responsible for their reps.

Depending on what your illness is, how long you've had it and how long it may last for, you could possibly be covered by the Equalities Act but this would definitely need investigating with your union/doctor/occ health.

Sadly you are not immune from dismissal even though you genuinely have a long-term illness. Provided the company can show thay they have followed the disciplinary procedure and have investigated all options for alternative work and reasonable adjustments if you are deemed to have a disability, then they are able to dismiss you on capability grounds.

I am a union rep and have also had experience of dismissal due to ill health when DH lost his job a few years ago.

HermioneWeasley Wed 13-Aug-14 19:40:14

What is your illness, how long have you had it, how has the company caused it and how long have you worked there?

ab90 Wed 13-Aug-14 20:04:41

NapoleonsNose

Already tried that they were really rude and didn't want to help me. I asked them that I needed help because the local rep wasn't helping and they said I would need to go through local one at work only.They said under no circumstances that they the head office would help me.

I've had the illness for more than a year. Occupational health nurse doesn't think it is covered by DDA. I disagree and this was 100% caused by the company.

Does that mean they have to investigate all the options now in terms of getting me back to work. if I've had past communications with them and they've asked me and I've not said anything would that be enough to say they tried ? Can you tell me generally what process was followed for your husbands case if you can without revealing specific details to his case

ab90 Wed 13-Aug-14 20:12:38

HermioneWeasley
I'm not sure I can post the finer details publicly without giving myself away. I'll try answering what I can.....I've been at the company for many many years more than 7 years. I've had the illness for more than a year

Unexpected Wed 13-Aug-14 20:20:33

How long have you been on sick leave and do you think there is any realistic prospect of returning to your job? I also don't understand why, on the one hand you say the company is trying to dismiss you (presumably on Capability grounds) but on the other hand, they are pressuring you to come back to work?

ab90 Wed 13-Aug-14 20:31:26

Unexpected

Sick leave for 1 year

Sorry I think I put it wrong way....they were asking me constantly prior to this. Now they have told me that they are starting these proceedings which might result in dismissal because of my illness

flowery Wed 13-Aug-14 20:32:49

Bottom line is, do you think you are fit to come back to work or will be in the near future? Does your doctor?

The OH person will advise your employer about whether there is a realistic prospect of you returning to work and whether there are any adjustments to your work, either temporary or permanent, that might enable you to do so.

If you are realistically unlikely to come back in the near/medium future, and/or there are no adjustments that can be made to enable you to return, your employer is within their rights to consider a capability dismissal. If you've been off sick for a year already it's not as if they've rushed the decision at all.

The question of blame has no relevance when it comes to a potential dismissal for capability. Your employer is not more obliged to keep you employed if it is at fault than it is if it is not at fault.

The question of blame comes under personal injury.

Moreisnnogedag Wed 13-Aug-14 20:38:23

Have you ignored letters/communication from them? Because yes that would be seen as making effort and you not responding to it.

Not to be unkind but be careful about hanging your hat on what your GP has said. Illness/disability that is severe enough to stop working for a year needs further specialist investigation. Somebody saying something is due to work is completely different to saying your specific work caused it entirely. For example, people can be predisposed to back pain and may have exacerbated it by the work they do. However, certain chemicals cause illnesses and work exposure is the sole cause of it.

Plus you do need to engage with occupational health. A GP generally cannot tell you exactly what you can and can't do whereas an occupational health doctor is usually industry specific and will tailor it to your actual job.

ab90 Wed 13-Aug-14 20:41:40

Flowery
If the company are not willing to adjustments that I feel reasonable then what happens? The reason why they are unwilling to make these adjustments is because they know they are at fault and are covering it up

I feel like the company has made an unofficial decision to get rid of me and are just jumping through the legal hoops to show that they are following process. Anything I can do about this?

How do I take forward this personal injury matter then?

Thanks

ab90 Wed 13-Aug-14 20:49:55

Moreisnnogedag

I have always discussed by phone and don't have anything written down.

Okay, I see where you are coming from. The problem is the occupational health staff cannot really help me because the problem caused by my company is so specific. All they are suggesting is do a phased return and discuss issues with the company- the company doesn't want to tackle to issues I have mentioned to resolve it.

Rangirl Wed 13-Aug-14 20:54:44

You should take specialist advice from an employment solicitor asap
Preferably one who can run things past a personal injury law colleague
Unfortunately if youare too sick to work they probably can fairly dismiss you Your best chance might be to come to a settlement with them This will depend if there us any legal basis for your claim that work has caused your illness Not that in any way I am disputing that it did but what I mean is can it be proved

flowery Wed 13-Aug-14 20:58:55

The OH will advise the employer as to what adjustments would enable you to return to work, if any. If the OH report advises that there are adjustments which are perfectly possible to make and would enable you to return to work, and your employer refuses to implement them without good reason, then they may be vulnerable legally if they do choose to dismiss you for capability.

As you've been off a year, presumably you've asked for these adjustments some time ago. What reason were you given for the adjustments not being implemented?

ab90 Wed 13-Aug-14 21:14:28

Flowery

I've not asked for adjustments in writing, I have verbally discussed it but not as adjustments though. Do I need to put this all in writing asking for adjustments?

ab90 Wed 13-Aug-14 21:15:20

Rangirl

Thanks I will try that

magso Wed 13-Aug-14 21:19:01

I don't know anything about the legal side, but when I was off work due to illness, I found occupational health very helpful. The doctor who saw me basically told me if I was not well enough to say speed up slightly to catch a bus (I fainted if I did anything even mildly energetic, and actually getting to the OH appointment was really too much for me) then I was not well enough to return to work, and recommended I rest up till I could! It possibly helped that his own specialty happened to be appropriate for my illness. I was desperate to get back to work, so went back long before I could have used a bus, never mind run for it, but had a staged return to work, starting with a couple of hours. I never got back to my full hours as it became obvious (after a year) that I never would, so I re-negotiated my hoursto what was manageable for my poor health (and sadly my pay of course). Not a move that all can make - it affects my pension as well as my current finances. I did feel OH was there to protect my health - as much from my over ambition as from my employers. However I know you have to be very careful- especially if OH is part of the company you work for. I was seen by an independent OH consultant, who advise the OH department where I work. It is hard for employers to know what adjustments need to be made, but mine certainly took on board the recommendations, to help me protect my health, and even pulled me up if they caught me overdoing it!

flowery Wed 13-Aug-14 21:24:42

Yes absolutely. The OH will advise the employer about any reasonable adjustments but if you have adjustments that you have requested, definitely put that in writing.

honestpointofview Thu 14-Aug-14 20:11:16

Hi
I do not want to contradict Flowery is always right, nor OP, do I want to give false hope. It may however be worth pointing out especially in more clear cut cases, that blame does have some (and i say only some) relevance when it comes to dismissal. Here is what the appeal courts say and I have quoted in full so I do not misquote what they say;

"It seems to us that there must be cases where the fact that the employer is in one sense or another responsible for an employee's incapacity is, as a matter of common sense and common fairness, relevant to whether, and if so when, it is reasonable to dismiss him for that incapacity. It may, for example, be necessary in such a case to "go the extra mile" in finding alternative employment for such an employee, or to put up with a longer period of sickness absence than would otherwise be reasonable. (We need not consider the further example, suggested by Bell J in Edwards, of a case where the employer, or someone for whose acts he is responsible, has maliciously injured the claimant, since there is no suggestion that those are the facts here. But we should say that we find some difficulty with the implication that in such a case there could never be a fair dismissal.) However, we accept, as did Bell J and Judge Reid, that much of what Morison P said in Betty was important and plainly correct. Thus it must be right that the fact that an employer has caused the incapacity in question, however culpably, cannot preclude him for ever from effecting a fair dismissal. If it were otherwise, employers would in such cases be obliged to retain on their books indefinitely employees who were incapable of any useful work. Employees who have been injured as a result of a breach of duty by their employers are entitled to compensation in the ordinary courts, which in an appropriate case will include compensation for lost earnings and lost earning capacity: tribunals must resist the temptation of being led by sympathy for the employee into including granting by way of compensation for unfair dismissal what is in truth an award of compensation for injury"

So as you can see the employer may have to go that extra mile but of course they can still dismiss.

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