Occupational Health saying back to work, doctor saying no? What do I do?

[TwoIfBySea]

For the past 7 months I've been floored by post viral fatigue. That along with an existing thyroid problem has meant I can barely function at home let alone anything else.

Unfortunately progress has been treacle slow. Saw the OH on Wednesday, she said employer only gives 3 months for pvf - after that you're expected back at work and I should be expected back at work in two weeks. Doc has signed me off for another 4 weeks, I've to go through all my blood tests again anyway. He thinks its ridiculous I'd be expected to suddenly get well over night after struggling along.

Meanwhile I have less than zero energy. I loved my work, I loved my life, at the moment I'm existing and doing the little I can to try and get back but every time I make an effort I'm barely able to move the next day, sometimes over a few days.

I'm now on ESA (yeah, I get more pathetic as it goes on) I hate feeling like I'm a malingerer and now I have this added pressure from them. I was good at my job, I'd hate to lose it but I'd hate to return and then end up in hospital unable to look after my dts. What do I do - where do I stand?

Sorry you are suffering with PVF it's horrible.

What do you mean in that the employer only gives three months? Do you mean that they will start capability measures after three months?

I am not sure I understand, if this was me, giving advice, I would probably tell you what the employers normal stance on sickness is, but not on a condition as that is very individual.

So for instance I would say you understand that you have been off x months be prepared for going to half pay (I don't put it that bluntly but work it into the conversation), this is because one of the things that can knock people for 6 is the automatic letter they can recieve a few weeks before their pay is reduced, which is yet another worry on top of being ill.
could it be that he/she was trying to hint to you that your employer may start capability procedures in the near future if you don't return soon?

Or was the return in 2 weeks on phased return as in you slowly build your hours and this can only last 3 months?

I would if it was me and baring in mind I know nothing of your employer or job, so this is very general, at 7 months of no improvement I would be concerned about the employer starting capability, so I would thinking of trialing a phased return and the 2 week lag from my seeing the person to starting this, is because it gives the client a bit of breathing space to sort out home stuff and try to get back into a more work like routeen, especially after 7 months of not having to get up for instance.

I would recommend, shorter hours building up over a fixed time frame, work from home if available, whether you are covered by the Equality Act that sort of thing.

When working shorter hours it is not unreasonable for your employer to ask you to use you holiday for this if you have a lot outstanding, this is a management issue and OH would not get involved.

Basically, you need to go back to the OH and ask for clarification, if you saw a Doctor their recommended Practice is reading your report to you before you leave and a copy sent to you, but this is not a legal thing, Nurses don't have to do this but most I know do, if you haven't got one, you are intitled to get a copy.

it is a terrible condition, I hope things start to improve soon.

Sorry forgot the first bit OH trumps over GP even in law and even if it is a Nurse, but your employer can follow which ever advice they wish, GP or OH, But becasue in a legal sense they are better off following OH advice they tend to.

Thanks, didn't think it would be in my favour. Ah well, I'll need to see where I stand I think. Work will definitely go with OH as any and all illnesses are seen as a disciplinary action regardless. I know when I do go back I'll get a verbal warning over any future sickness.

The OH did talk of phased return but at the moment there is no way I could cope with returning to work. I have to be honest with myself and admit that because it was me pushing myself to the limit that got me in this mess in the first place!

I've never been off sick for more than a couple of days with a cold or flu in my life so I'm running blind here. As I can't concentrate at all I find information overwhelming, I take it in little bites. I've already finished SSP and am on ESA now, again I'm kind of floundering as this is completely new ground for me.

Well the employer doesn't get to 'give' specific periods of time for individual conditions, what a load of rubbish. Either you are fit to work (even part time) or you are not.

Personally if my GP was certain I was not fit for work I would not jeopardise my health by returning to work.

Make sure you get a copy of the OH report and I would take it to your GP as well for his thoughts.

missingmumoxo if you could point me to the piece of legislation or case law that indicates that if an OH disagrees with a medical certificate from a GP then the GP's certificate is invalid that would be enormously helpful to me.

there is a lot of case law to support this, but a simple peice of info is the DWP leaflet for employers.

www.dwp.gov.uk/docs/fitnote-employer-guide.pdf

"What should I do if I offer support to an employee to aid them to return to work and they disagree?

If you believe that on the basis of the advice from the doctor and your knowledge of the workplace, you can support your employee to return to work and they disagree with your proposal, your first option should always be to discuss the issues with your employee to find out why they believe they cannot return to work. There may be an aspect of their condition or the workplace that you have not considered.
If no agreement on your employee?s fitness for work can be reached, you may want to consult an occupational health specialist and, if needed, you should consider your organisational policy for absence disputes. More information on best practice and support can be found from Acas online at www.acas.org.uk. If the disagreement is about the payment of SSP then there is a prescribed HMRC procedure ? see
www.hmrc.gov.uk/employers/employee_sick.htm
for more details. Your aim should be to ensure that both you and your employee are comfortable with the support that is being offered. If there is disagreement you may wish to suggest that the employee seeks advice from their trade union or an advice centre."

The reason for this is because OH is a specialism in itself and the Drs and Nurses become expert in the workplaces of the employees. we also have a lot more time to discuss who a condition affects them than the GP, (not the GP's fault just the way it is)

the opposite happened in my workplace where a GP signed someone fit for work, which to be fair in most workplaces would not be an issue, but with this persons Job, the drug prescribed a blood thinner could actually prove fatal or at the least cause internal bleeding, this is due to the significant risk all employees in this role run in aquiring injury and whilst this is minimised the job does unfortunatly mean that injury does happen. (Services) we allowed them to return in a non operational role for the 6 months of treatment, this allowed the employee to preserve their occupational sickpay if (and lets hope nothing does happen for their sake) they where to require any other sick time in the next year as they feel well and would be kicking their heels at home.

My comment on capability and Management no way reflects my opinion on the subject concerned with CFS, fortunately I work for an employer who seem on the whole supportive and I have seen some great outcomes, it has taken a couple of years in some circumstances but currently all the cases I have are still in work and only 1 has been adjusted down in hours, the rest have returned full time.

Unfortuanately I know that alot of employer's are not as accommodating.

If you are interested in this aspect of Law the Guru is Diana Kloss, she is an employment Judge and writes prolifically on OH and the Law.

Thanks for all the information, wish I had the brain to absorb it properly! I did show the report to the Doctor, who promptly signed me off for another 4 weeks.

I'm thinking I don't want to be getting into the middle of an argument with one lot saying something and the others something else and not knowing what to do!

My manager had said that after a few months HR start looking in to "illness termination" so I've been stressed about that which hasn't helped. Illness is not looked upon kindly, there are a lot of people who suffer from long term illnesses though - I've never worked anywhere like it!

OP missed you 2nd post sorry.

I think you maybe could come under the Equality Act with Post Viral, get it clarified, if in a Union get advice, and try acas and CAB.
on a positive note see above post, but also you may be able to do this, you will feel crap when you return, but it is like me trying to run a marathon on monday as the potato I am, but phased return is like me running a mile on Monday, I will feel like crap but if I continue I will eventually get there might take me 6 months a year, obviously this is a simplist example.

the problem is employers have a bottom line, and OH will do every thing they can to help you, even if like you, it makes the client unhappy, at 7 months most employers will be looking at return to work date and if one is not forthcoming they will start capability, I tend to err on the side of suck it and see, it might fail, but it might work but if you don't try at all then there is only one route the employer will go down.

the suck it and see route has worked in every case I have had as the client suddenly has a outlet to talk to people normal work banter, not feeling guilty about being seen in the supermarket or out in the evening, (trust me this is a battle I have had many times with managers...you have to eat! Have they ever heard of work, life balance? counts even when you are ill, I tend to win that discussion)

You still haven't said what you do which makes this difficult but have you thought about what you could do to aid your return to work? as in could you maybe suggest working say 10 hours a week from home, you could control this to good days.

I know I could sound heartless but I don't mean to be, I don't want you to lose your job and OH has no influence over this process we can only do our best, and I hope your OH was doing the same in a clumsy way.

Thanks missing, appreciate the advice, I don't want to say what I do as it would out the employer & they do have people online looking for mentions of the company name (usually to head off customer complaints!)

I have asked to work from home but it is not possible and HR won't move me into a department where I could do something. I work in a call centre, high volume, once there you are not allowed to leave if feeling poorly which does scare me.

I have emailed HR requesting a shift change, I have worked evenings but need to work days if I am expected at any point to return. There is no way I could work evenings now as I get moments like now where I am so tired but unable to sleep and moments where I'm in bed same time as my dts. Last time I asked for a shift change it took over 2 months, in the end I ended up doing a shift I wasn't happy with but they wouldn't move.

I'm thinking I need to pull myself together somehow and look into alternative jobs that would allow me to work from home. That way I could do more hours while managing this. I had intended on moving towards this at some point (I finished my OU degree at the end of 2010 and 2011 was supposed to be the year I did my own thing!)

missingmumxox thank you for that. However that DWP guidance gives advice about what to do if the doctor has said fit for (some) work and the employee disagrees, suggesting that involving OH would be a good idea in that situation, which I agree it would.

It doesn't say anything about a scenario where the doctor has said not fit for work and OH disagree, and doesn't state anywhere that in the event of a conflict of opinion, a note from the employee's doctor saying he/she is unfit for work becomes invalid.

Don't worry, I'll look into it myself, if there's plenty of case law I'll be able to find it.

Sorry for hijack OP!

"If you believe that on the basis of the advice from the doctor and your knowledge of the workplace, you can support your employee to return to work and they disagree with your proposal, your first option should always be to discuss the issues with your employee to find out why they believe they cannot return to work. There may be an aspect of their condition or the workplace that you have not considered."

As Flowery has said, I think you'll find that you have misinterpreted the text. It's because they've used 'they' as a dependent of 'employee' but in the same sentence as 'doctor'.

The correct interpretation of the sentence is:

If the doctor has advised you that the employee may be fit for work, and your knowledge of the workplace leads you to think that you can support the employee to return to work, but the employee disagrees with your proposal, your first option should be to talk to the employee.....

In other words, the GP is of the mind that the employee can return to work with or without adjustments.

Bookmarking as I am trying to help a colleague in a similar position and am desperately trying to find out her rights.

I hope things work out for you OP.

Here's one case where a tribunal held employer was wrong to act on oh advice which disagreed with gp rmtlondoncalling.org.uk/node/92. That was top result from google on the subject although it was 2008 so there may more recent cases that went the other way of course. Will keep looking.

This says the opposite and mentions cases but without giving the references. It's from 2005 though. www.phcohealth.com/briefings/21December2005.pdf

Wish you well soon OP. I've been off now since Nov 2010 and am lucky to have a very understanding employer but still have to jump through the OH assessment hoops every 3 months (as on an Income Replacement Scheme that work provide). I never know whether they are going to agree with my GP. My condition is rare so there wouldn't be anything like you have though that "three months is enough".

I was in your situation several years ago, but I had a far more understanding employer/occupational health doctor - in the end I had to give up my job, but I can't fault all the help I was given over the 12 months when I was off sick. Lots of people have no understanding of just how awful this condition is - even something as simple as holding the hairdryer to dry your hair is a mammoth task.

Have you seen this forum www.chronicfatiguesyndromesupport.me.uk/ - there's lots of useful advice about the condition, benefits etc (and an awful lot of complaints about the DWP and the way they treat people with the condition) Also have you been referred to a specialist CFS centre by your GP or for CBT or seen the NICE guidelines www.nice.org.uk/nicemedia/pdf/CG53NICEGuideline.pdf - the link may not be uptodate and there is an awful lot of information but if you read it in small chunks you might find something helpful.

I reall feel you - hope you pick up soon

Thanks for the link millymae. Hope you're better now. You'll understand what it is like to try and describe it to people, especially people who have been used to seeing you running around doing everything. Tired doesn't cover it.

Totally know the hairdryer thing! For me it is having to stop for a break when putting the washing out. Seriously, it's ridiculous but I can see why others don't realise as before this I didn't know it could be so bloody hard!