Redundancy/ill health severance

[afrikat]

I have worked for the same company for 9 years and am now in a fairly senior position. I worked hard to get here, love my job and am very ambitious so have always worked hard in the various roles I have held.

Last May (2017) I got pneumonia and was signed off until i recovered. Unfortunately when the pneumonia passed I didn't get better and was diagnosied with post viral fatigue. I was off for 4 months in total and then took a similar amount of time to phase back in to full time. They have been very patient and understanding and have agreed various reasonable adjustments such as working from home when needed.

I am still struggling with episodes of fatigue and have been diagnosed with ME / CFS which is classed as a disability.

I was managing my symptoms well and getting back up to my previous performance levels at work until last month when I had another 'crash' and was signed off for 3 weeks. I am now back and will be back to full time hours next week.

Work have now started making noises about 'making some difficult decisions' and really thinking about if I can do this job long term. I understand where they are coming from, it has obviously been very disruptive but it's so hard to know what to do in the long run. My symptoms fluctuate so much, some days I feel like I can take on the world and others I can't get out of bed. I haven't given up hope I'll make a full recovery but it's just impossible to say if or when that will be.

Obviously they can't dismiss me because of my disability but they can if my performance isn't up to scratch (I suspect they will start closely monitoring this). There is also the chance of a reorganisation in a few months where I will have to apply for my job in which case they could make sure they choose another candidate.

I don't know what advice I am after really. Should I keep hanging on, hoping I can eventually do this job amazingly again? Admit defeat and accept ill health severance? Wait for possible redundancy?

I have no idea how we would survive financially if I was let go - I am the larger wage earner by far and even with a pay out we would struggle as I wouldn't be able to apply for other jobs until my health was better.

TL:DR - should I keep pushing myself to keep my job or leave with a small pay out and hope I get better with more rest

[afrikat]

Sorry I have no idea where my paragraphs went!

[SpecialBond]

It's not unlawful to dismiss someone with a disability because of a reason connected to that disability if the employer can justify it by showing they have a good enough business reason for dismissing you.

If there were reasonable adjustments that your employer should have made that would have prevented the dismissal, your employer will find it hard to justify dismissing you.

The dismissal will not be unlawful discrimination unless your employer knows, or could reasonably be expected to know, that you're disabled.

^cut and past from Citizens advice.

[flowery]

"My symptoms fluctuate so much, some days I feel like I can take on the world and others I can't get out of bed. I haven't given up hope I'll make a full recovery but it's just impossible to say if or when that will be."

This is the problem though isn't it? It's that complete uncertainty which makes your employment vulnerable. It could be a couple of months but it could equally be years and years.

"Obviously they can't dismiss me because of my disability"

You need to rid yourself of this notion, it's a complete myth. If there is no realistic prospect of you being able to fulfil your role longer term, and your employer has made every effort to explore reasonable adjustments to enable you to stay in employment, they absolutely can dismiss you for capability reasons. The fact you have a disability will make this process a bit slower, as they will need to have considered reasonable adjustments and will need occupational health or other medical advice indicating that your return to full capacity in the near future isn't likely. But your disability doesn't protect you from dismissal, and there is no requirement for any 'pay off' or similar, other than your normal notice period. That's not to say they wouldn't give you some sort of additional payment, many employers would, for long-serving valued staff in these circumstances. I'm just making sure you are absolutely clear about the worse case scenario and are not making decisions under false illusions.

"Should I keep hanging on, hoping I can eventually do this job amazingly again?" Well I wouldn't voluntarily resign, but for financial reasons at least, would suggest you hang on as long as your health isn't being damaged, and listen to your doctors and be realistic about what you can and can't do. "Admit defeat and accept ill health severance?" Is it on offer? "Wait for possible redundancy?" They couldn't select you for redundancy because of your disability, but that might be an opportune moment to negotiate some kind of package which you would otherwise not be entitled to.

I think you need to take a bit of time and be realistic about the extent to which you are able to work now, and over a longer period. If you are going to get stressed about not doing your job properly, that will not help your condition. You don't want to end up making things worse by pushing yourself and pushing yourself.

Might it be sensible to see how things go over the next couple of months, and then as part of the restructuring, have a conversation and see what might be on offer?

[afrikat]

Thanks Flowery that's all good advice and think taking the next few months to consider my options and start those discussions makes sense.

[Loopytiles]

They can and may well follow a process ending in dismissal due to the level of sick leave.

They probably would prefer you to resign, or to offer a small payout / negotiated exit on the grounds of your health and sick leave.

[daisychain01]

If it comes to it and you do make a mutual decision with your employer to part company - when the offer is on the table make sure you seek legal advice to review the offer to ensure it's fair and reasonable.

Make sure the offer is worded either as a redundancy or an ex-gratia payment so that it is treated as tax-free.

Try to get a basic reference included, because although you are leaving for ill health reasons, that doesn't mean you haven't been a good employee with a good track record of work. You could make a recovery (hopefully!) and want to seek new employment, so your reference is important. Even if a new prospective employer asks them about your attendance, you can address that at the time - having the reference in your hand is worth negotiating into your settlement.

[daisychain01]

Your employer isn't legally obliged to fund a solicitor to check your settlement but they very often do if you ask. It's in their best interests to have your solicitor rubber stamp it so there's no comeback later.

[JennyHolzersGhost]

I think in your position one thing I would do in the meantime is to have a plan B in terms of household finances. It sounds quite likely that whether by going part time or taking redundancy or being booted out, you will have to face a lower household income in future. Have a look at how to cut back and what if any big decisions may need to be made in those circumstances. Having to scramble to cope with a sharp drop in income after the effect will be far more difficult than having got together a plan in advance.

[DianaT1969]

even with a pay out we would struggle as I wouldn't be able to apply for other jobs until my health was better.

There's uncertainty of you ever feeling up to a full-time job with lots of responsibility again (as that no doubt comes with long hours, added pressure and stress). Perhaps a commute too? It might be the time to explore doing what you do, or similar, on a freelance basis at home. Consultancy work or similar. Is that an option in your field?

[maxelly]

You've had excellent advice here. I can just add from personal experience that my mum went through a similar thing - diagnosed with a long term (fluctuating) condition after a long period of ill health, and went through a cycle that lasted several years of being sick - off work- getting better - sick again - off work again. She loved her job and was very good at it so it was really upsetting to her to not be able to do it to the same standard any more - when she was off work she would be stressing about getting back to it and when she was back she would exhaust herself by pushing to make up for lost time and do a really good job to 'prove' she still could. Like yours her employer was really supportive although they did finally lose patience after a number of years of inconsistent health and eventually, after a long process, she was given ill health retirement. This meant her pension scheme paid out early (she was in her early 50s) so she got a lump sum payment and a small income for life. It wasn't enough for her to pay all bills so she now claims benefits and had to downsize to a smaller property etc. So not all rosy but ultimately I think it was the right thing for her to stop work, but she definitely would have struggled to come to that decision on her own as her career was important to her and not something she gave up lightly. So I fully understand how difficult this must be for you.

My advice to you for what it's worth is don't feel rushed into a decision. For now your employers are happy to wait so definitely don't resign. Try and read up on your employers policies and also your pension scheme's ill health retirement/severance provisions. My mum found it really long-winded and difficult to claim the ill health retirement as they want to see evidence that your condition is permanent and effectively prevents you from ever working in that job or one of a similar level again, which is difficult with fluctuating/neurological type conditions where there is always the possibility (and the hope!) of improvement. But read up anyway, and also on redundancy. Try and get a feel for whether your employer would be open to negotiation, perhaps as others have said as part of the restructure. If you have a trade union at your employer they should be able to advise you with some 'insider' knowledge. Or otherwise it might be worth investing in some legal advice on negotiating a settlement. And be kind to yourself and try and prioritise your health where you can!

[afrikat]

Thanks all for some helpful advice. I've had a chat with a close colleague and she doesn't think there is any need to panic - the company aren't looking to start any formal proceedings just yet (she has some insider knowledge) so I have time to figure out what the best plan is going forwards. There is potentially a role coming up for similar pay but much less stress that I could consider, the hiring manager is aware of my condition and is very sympathetic and still wants me to apply so that's an option.
In terms of going freelance, that is possible in my line of work but the people who do that seem to travel around alot and work under tight timeframes so possibly wouldn't help things

My husband and I have started doing a total overhaul of our finances to figure out where we can cut outgoings and become more frugal. We've become used to buying and spending whatever we want so it will be a shock to the system but we have to be realistic about my future earning potential

I feel so let down by my body and unbelievably frustrated I am in this position, which I know isn't helpful but it's hard to come to terms with the fact that I may have to seriously compromise my ambitions because I'm just not physically able to carry on pushing myself.

Maxelly your mum's situation sounds very similar and I am so sorry she's been through all that. Thanks for the advice and I will do my best to get all the info I need to make a decision

[Loopytiles]

That all sounds really positive, afrikat. sad and upsetting to be in this situation, but please be kind to yourself and not self-critical.

My DM had to stop work (for the NHS) suddenly, at a young age, due to unexpected ill health, which sadly has in the years since degenerated further. It was a huge shock at the time and still a massive, negative life event, but she achieved a hell of a lot in her (shorter than hoped!) career and is an inspiring person. She wishes she had been kinder to herself.