Legal Help Needed! I think my employer is going to force me to quit!(16 Posts)
I've worked for the same company for nine years and they have always been very difficult.
I had a baby 14 months ago and took the full 12 months entitlement. However before I was due to return to work I had a relapse. I have graves disease, (thyrotoxicosis) and it dibilitates me. So I haven't been back to work since. I've had 24 weeks off sick and decided that I was fit enough to return to work a couple of days.
When I approached my employer about returning two days a week the HR guy became very difficult. Then this morning I received a letter from them insisting that I sign over my medical records and see an independant doctor of their choice.
Do I have the right to refuse them access to my medical records? Shouldn't a letter from my GP and consultant be enough without giving them everything?
Am I being to unreasonable not wanting them to see my records?
I really don't know what to do. I was hoping to return to work a couple of days just to get back into things but I think they want shut of me.
What is constructive dismissal?
Well as far as I know:
-you don't have to let them see your med records
-it's not really unreasonable to refuse, no.
Constructive dismissal is when the company change your working practices in order that you have to quit (i.e. they want to fire you but can't so they try and make you leave yourself). This wouldn't be constructive dismissal, but it would probably be unfair dismissal if they were to sack you AFAIK - I'm not sure on what the rules are for people who take long term sick leave.
You should speak to a union or the CAB pronto IMO.
PS sounds like they're trying to get evidence that you are not really ill. I would see the independent doc if I were you.
Sorry Flip, don't know legal ins and outs but a friend kept getting memos from her employer saying things like, "you seem to be having difficulty balancing home life and work life" or words to that effect and her solicitor said she had grounds for constructive dismissal. I would think no-one should have a right to see your medical history other than your GP but perhaps I'm naive! Horrible of them, isn't it?
From what i remember your employer does not have the legal right to see your medical records, only you have the right i think (not 100% sure) but i'm sure I saw something about it on a website recently, i'll have a look back on the pc and post again if I find the site. Surely a letter from your GP/consultant would be more than satisfactory. I have heard of companies requesting you to see a doctor of their choice but not sure of the legal aspect of it. i'm sure you don't need all the stress of worrying about it though!
Thanks for your reply.
I intend to see their independant doctor because it will only add weight to what I have already told them. I just don't want them having access to the last thirty years of my health though. I could remain on long term sick, but I'd like to return for just a couple of days a week. I really couldn't manage anymore. I might not be able to handle two days, but I won't know unless I try. I just don't think they want me to return.
I have already provided them with more than just a sick note. They've had two copies of letters that my consultant sent to me after appointments.
They have always been so difficult with me. The last two requests I put in for child friendly hours were denied stating "business reasons" but not what those reasons were. The HR guy said that it would cost more for someone to job share with me. If that's the case then why have they never replaced me while I was on maternity leave of off sick? They must really not want me back.
I don't know what to do.
There's a poster called "sis" on here with an HR background who might be able to give you a steer on this.
Your employer may be trying to establish that your illness is preventing you from doing your job. If they then choose to dismiss you on this evidence, this is deemed to be a potentially fair reason for dismissal - probably as it falls under frustration of contract. However, the decision as to whether the dismissal is fair or not will be that of any tribunal. So they would be taking a risk in dismissing you for this reason, but it is a risk which might seem worth taking to them.
Flip, the short answer is that you do not have to give your employers access to all your medical records. I would suggest that you write a very polite letter back to them saying that you are happy for them to have relevant information and to this end, would be prepared to allow them access to a report from your GP/specialist or, if they prefer, undergo an independent medical examination.
Sometimes, it is helpful to make employers think twice by saying that you have taken advice on the matter. So, when you write to them, you could say that you have taken advice on the matter and understand that you are not required to give them access to all you medical records however, as you are a reasonable employee, you would be happy for them to have access to relevant medical record if they send you the proper paperwork as required under the Access to Medical Records Act.
If you have discussed the matter with your GP, and she/he agrees, say that your GP agrees that you should go back to work on two days a week to start with, to help you pick up the pace until you can return to your normal duties.
Constructive unfair dismissal is when your employer does not say that you are dismissed but his/her actions are such that it makes your continued employment untenable. I don't think you are there yet - but make clear notes of who said what and when and in the presence of whom - you never know what information is going to be useful in the future.
Flip - I don't want to put my experiences here, but I can really empathise with you and you are welcome to CAT me. If you want to read a bit of my background first, search for the ME thread that I'm on. I think you'll find it in the Health topic. I'm further on than you in a similar situation and I think I can help you a bit. With luck, you won't get into the situation I'm now in. I wish I'd known six months ago what I've learnt since as I could have stood up for myself so much better. I think the advice you've had so far sounds really good, too. Hth.
Hi Flip I'm not an expert and I'm afraid I don't know anything about graves disease but I do know that if it has a serious effect on your health (or is expected to) for more than 12 months then you may be termed disabled under the Disability Discrimination Act. If so, then your employer is simply not able just to get rid of you because of your illness. They must show that they have made *reasonable adjustment* for your illness which in your case may well include something like letting you work 2 days a week to start with (especially if you can get your doctor to advise it). I wouldn't necessarily worry about their doc. He/she should back up your case anyway and this could give you more grounds not less to keep your job. If you don't see the doc you could be accused of not cooperating with their 'help'. Good luck. I'm sure it will work out OK.
Actually, if you've been off work ill for some time, your employer can expect you to see one of their doc's (or a doc of their choice). This is from the NACAB website (CAB) "If you have long periods of time off work, your employer can contact Medical Services to decide if you are fit enough to do your job."
I don't think they can finish you because of your illness - but there is some sort of loophole because a friend of mine with a long-term debilitating illness was finished from work (legally) on sickness grounds.
Thank you everyone for your help. There's a lot to think about and I'm writing my responce to them now.
I did speak to someone about the Disability Discrimination Act but I was having a bad day and couldn't think at the time to answer their questions.
Thanks again. I'll let you know their responce.
Flip - My advice to you would be (in light of my experience):-
1) Contact the Citizens Advice Bureau
2) Contact your union (if you have one)
3) Contact the Disability Rights Commission
If I'd done that:-
1) I wouldn't have been pressurised into applying for medical retirement. In the event, this was turned down because my condition isn't permanent and I'm still quite young.
2) I would have known that they were required to make reasonable adjustments and I would have asked for (some) home working. This would have helped me no end.
3) I'd have known about the Disability Discrimination Act and the protection it offers. My employer has not once said the word DDA to me although it is written in the occupational health doctor's reports. Also, in the reports, it says that the info they contain must be shared with the person concerned (me) and they didn't. There was info there that would have been so valuable to me in my working life and this was withheld.
4) When they called me into a meeting to discuss my options (1 - resign, or 2 - be dismissed), it wouldn't have been the dreadful, dreadful shock it was. They refused to hold a position open for me once I was well enough to return and said that it was down to business reasons. They said that they should have started the process many months previously, even though the recovery period for ME is often years rather than months, and given the severity of my condition, I could not possibly be expected to work with the condition as it was.
5) I would have known more about the dismissal process. Now I do, I can see that they haven't followed the process correctly. This is part of my case against dismissal. Don't assume that they know what they are doing even when they say that they do. My employer handled it badly (very insensitively) and were wrong in several ways.
Please hold off sending the letter until you have sought advice from say the CAB or the DRC. Send a holding letter if you have to reply immediately.
Sorry if this sounds terribly bossy. I wouldn't want anyone to go through the experience that I have. So much of it could have been avoided if my employer had followed the rules fully and had handled it sensitively. I've got about 2 weeks until I know whether I have won my case against dismissal. If I lose, I will take it further - not just for me, but for anyone else in the organisation who has ME to save them from being treated in the way I have. In addition to this, I read in my union mag that arrived the other day "In a potentially significant decision, an employment tribunal in <<city's name>> has ruled that the <<big employer's name>> discriminated against an union member by not discounting disability related absences when calculating her entitlement to the department's maximum six months full rate sick pay. etc The Tribunal found that this amounted to less favourable treatment under the DDA, arguing that it would have been a reasonable adjustment under the Act for the department to have discounted disability-related sickness absence towards the trigger for reduced sick pay" This makes me think that I may have a case against going from full pay to half pay to sick pay at pension rate to nil pay, and I will ask my union rep about this tomorrow. All my leave was related to my disability and I am covered by the DDA, so we'll have to see if they were right to stop my pay in the way they have.
Please do CAT me if you want to. Wishing you all the best.
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