New job whilst on sick leave

[Sophinwonderland]

Hi,
I have recently been signed off sick due to stress and burnout related to current high pressure role; I was unsure about returning when my condition improved and applied to several other jobs to see if that was an option. This was very much supported by my gp and the occupational health service I’ve been referred to. I have received an offer from a new role that requires the same knowledge as my current job but is less fast paced and has fewer responsibilities; I am positive I will be able to do the role and after discussion both gp and occ health think this would be miles better for my health and will eliminate the issue. There are two things I’m worried about though;

Is the new job allowed to rescind the offer if my absence comes up on a reference or is this discrimination? I thought they weren’t allowed to ask about health at interview but could ask after offer just not sure if they can take offer back. I also have mild Aspergers which has somewhat effected my ability to cope with very high stress situations if that is relevant to possible discrimination (current job wasn’t supposed to be stressful but due to others leaving and not replaced I had much higher workload and managers refused to help).

Also I am a little uncomfortable passing on info for reference from current job without handing in my notice first. however I have been honest about thinking of leaving with my manager and discussed what would happen if decided to leave; I had thought that I would still get my one month notice paid but would ‘work’ it on sick as it would be covered by my sick note as I wasn’t fit to return to that environment. My manager has discussed with HR and their position is ‘
If you decided that you did not want to return to work, we would not pay you in lieu of notice as it doesn’t make commercial sense seen as you had no intention of returning to work.’ is this correct legally? I can’t find any info in my contract on this situation. I would feel better morally if I could resign and ask for a reference then start new job at end of notice period but realistically I really can’t afford to be unemployed for a month whilst employment checks and references are done to start new company. If they aren’t obliged to pay my notice I would probably have to hope they either don’t start disciplinary action after Hr receives reference request or that it takes long enough that I’m still paid until the week before new job starts then hand in my notice with immediate effect as manager said I would need to do to leave on sick.

Any advice gratefully received, just want to know where I stand, thanks

Bad news first, yes new job could (theoretically) withdraw the job offer on the basis of your absence record (I've seen/heard of it happening). Would it be illegal for them to do so - possibly, it would depend on a number of things (a) is your mild aspergers a disability according to the equalities act (b) did your aspergers cause the period of absence (c) are you likely to be able to fulfil the requirements of the new role reliably, without the need for excessive absence, with reasonable adjustments. If they can reasonably say no to any of those then they could potentially withdraw the offer without it being against the law. It is legal to withdraw a job offer on a non discriminatory basis (even if it's unfair or fickle), or in some circumstances discrimination is justified if it would have a disproportionate impact on the business.

In practical terms I think it is worth being honest with the new job about what is likely to be said on a reference about your absence and your circumstances and gauge how they react, I certainly wouldn't be resigning without some assurance that it isn't a deal breaker for them. They may want you to be assessed by their own OH service or perhaps you can provide a report from the clinician you have already advising that you should be able to manage your stress in a less demanding role (plus any reasonable adjustments you require if they have judged you to be disabled) as this will help a lot.

I would be very very cautious about resigning from your current role before you have an unconditional offer and contract from new role at all, TBH. I know it's awkward/risky having to ask for a reference and make it clear you want to leave, but it's better than completely putting your eggs in the new job basket IMO.

Good news, I can't see on what basis they can withhold all your pay for your notice period. Worst case scenario they at least have to pay SSP. The response from your HR department sounds correct in relation to pay in lieu of notice, which is where they simply pay you a lump sum instead of you working a month's notice, which people often ask for if they want to start a new job quickly. This is normally completely at the employer's discretion so it's fair enough they don't want to do that. What they can't do is simply refuse to pay you for the time you are 'on notice' while you are still employed, just because your have resigned. So as you say, you should be able to remain off on sick leave so long as you have a sick note covering you, be paid sick pay for the month, and then start new job at the end of that period. The things they can do if they want to get really unpleasant about it are:

-Withhold contractual sick pay if your contract/T&Cs or their policy allows them discretion to do this, and bump you down to statutory sick pay only.

-Try and claim you are claiming sick pay fraudulently (i.e. you are really fit to work and are lying to your doctor to get a sick note) and withhold sick pay on that basis. I can see that at first glance it seems a bit incongruous that you are saying you are fit to work in the new (similar) job but not fit to work in current job, but as you have full support of your GP and OH for that position they'll be in a sticky spot trying to claim so...

Also, meant to add, even if they start disciplinary action against you as soon as you resign (which some spiteful employers like to do for some reason), it won't change much. Unless they can concoct a case that you have committed gross misconduct, they are still contractually obliged to pay your notice period if they dismiss you on the basis of your absence, or poor performance, or 'ordinary' misconduct or whatever reason they want to give. So I can't see the benefit to them of going through that process once you've resigned...

Aren't they just saying they won't pay you in lieu of notice? I.e. They won't pay you a month's salary and release you from your contract immediately.

So you'd resign, have a month to serve which would be paid at whatever rate you're paid at now (SSP?) and then be released. Same as if you were fit to work.

Because I would agree in the circumstances it does not make commercial sense to make a payment to someone so you can end their employment with immediate effect (payment in lieu of notice) when that person isn't currently working (so couldn't compromise information or take customers etc). They'd have nothing to gain from doing that.

Thanks both for your responses, have chatted with new job today and sickness won’t be a problem as long as I pass their fitness to work phone call which I’m sure I will as all areas causing illness will be removed in new job. They have agreed to do this before requesting my reference too which is lovely of them

I agree it doesn’t make sense to pay in lieu of notice but have asked current job specifically if they would pay me until my notice runs out if drs note covers that time and clarified I wasnt asking for in lieu of notice but this is the only response they would give. So it seems they are legally obligated to pay at least ssp for the next month if I resign is that right? Just in case it all goes badly and they refuse to pay anything at all I want to know if I should stand my ground regarding the ssp amount as that would be better than nothing as think they may start disciplinary after reference request and would rather have ssp than nothing if they refuse to pay out my notice after a disciplinary

Also maybe my description of old and new role isn’t very clear, don’t want to say actual as a bit of a niche area but think going from overworked surgeon to part time uni lecturer, all same knowledge needed but much lower stress