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Can I sue my boss for discrimination?

(3 Posts)
TeamAlphaFemale Mon 02-Jan-17 22:30:44

I am looking for any employment lawyers or similar who can tell me whether I have a case against my boss.

I went on maternity leave March 2015, due back 1 year later. 1 week before I'm due back I get diagnosed with breast cancer and signed off until further notice. I am not entitled to sick pay due to mat. leave so boss has to keep me employed but not pay me. (Am getting ESA instead) Around August time I asked my boss if I could come back for reduced hours - he said it wasn't in the best interests of the business or myself that I did that. I am in a client facing role so I offered to come back and do all the shitty grunt work as and when I could. I got no response.

I had to sign a consent form letting him be able to contacts my Dr, after I filed a grievance against him for not allowing me to come back. I never got any follow up on my grievance and nothing regarding whether they had made contact with my GP. I gave them anything they wanted so I would always look willing, although found it mass invasion of my privacy and it really did cause me lots of stress.

Now my sick note runs out soon and I need to go back to earning. I do NOT want to go back to work for that man as it's a small company (less than 10 employees) and the way he acted to me whilst I was off I have taken very personally.

My question is can I start legal proceedings towards him for not letting me work while I had cancer? I feel it was discriminatory and I would like to be compensated for the stress and lack of earnings they caused me.

I have spoken to a law firm who said they would only tell me if I have a case if I have an appointment with them - costs £150 and I don't want to waste my money!

Any help would be much appreciated. Thank you.

ComtesseDeSpair Tue 03-Jan-17 14:37:54

Sorry to hear you've been unwell, OP, and hope you're on the road to full recovery.

HR professional here. You mention that you were "signed off until further notice": does this mean that your fit note stated you were not fit for work? Given that fit notes offer an inbuilt option for your GP to say you could potentially return to work with reasonable adjustments, then if yours did not I would have thought that your GP felt you were unfit for work.

It isn't discrimination for an employer to make a decision to abide by the medical advice set out in your fit note. They have a legal obligation for your safety, and would be considered liable if your health suffered following a return to work whist you were still declared unfit. An employer also has the right to request further information from your doctors about your health as part of their decision-making process, so they haven't acted improperly there, even though you found it invasive. You can't really justifiably claim that they caused you stress, when you were the one to instigate the process it resulted from: and indeed, you claiming that even being assessed really reinforces their decision.

It does sound as though they acted unprofessionally by not putting their decisions in writing, and they should certainly have formally followed up your grievance: although it seems unlikely that it would have been upheld if the crux of it was that you wanted to be allowed back to work whilst still declared medically unfit - as above, they don't have to allow you to do this and certainly every HR Consultant I know would strongly advise an employer against doing so unless the GP specifically advised that the employee was capable of some work put this in writing.

Advice would be slightly different if your fit note stated that you could return to work if adjustments were made, as an employer has more of an obligation to assess whether this is viable: however, they still aren't obliged to allow you to return if the business cannot support the recommended adjustments - although should provide you with a justifiable explanation of and reasoning behind their decision.

It does sound as though your desire to return to work was primarily motivated by financial necessity: understandable, but also understandable that your employer may have sensed this and been cautious about your actual fitness.

Ultimately, I think only proper legal advice is going to give you a totally comprehensive answer; although based on my professional experience I don't think you have much of a case. Sorry, probably not what you want to hear.

TeamAlphaFemale Tue 03-Jan-17 18:42:13

Thank you so much for your help, just what I was looking for and I appreciate you taking the time to help me out!
No not quite what I wanted to hear but it saves me wasting money on a lawyer now I know a bit more about the ins and outs of all the legalities.
Thanks again for your help.

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