Employment law - is this legal??

[MaggieMcVitie]

DH went off sick last May when diagnosed with cancer. Following a major op, he asked to go back to work in November. He was told it would be better if he started back after Christmas (he was on full pay at this point so agreed).

He was refused a phased return and so went back full time after Christmas. he found this hard and was given a particularly tricky/political job to do regarding effective staffing. After a few weeks his manager took him to one side and told him to drop to four days a week as 'he could see DH was strugggling'. DH was upset but agreed to do this. A couple of weeks later he was asked to travel to a meeting with a senior manager (two hours drive away) where he was told that questions had been asked by others in the company as to why DH was receiving 'special treatment' and consequently he was to remain off sick until May - one year from his initial departure, on full pay. Again he did this, but his confidence was dramatically affected and at Easter he had a complete breakdown.

At DH's instigation a meeting took place at the beginning of May. He had made a good recovery - buoyed up in part by the thought of returning to work. He obtained a 'fit to work' certificate from his GP and went to the meeting expecting to discuss details of his return etc. However, he was told the company wished to obtain an independant Occupational Health report and he was to remain off work until this was organised. He now would drop down to 2/3rds salary as per the companies long term sickness insurance.

Nothing was heard for a fortnight after this and DH again stressed and frustrated had to ring around and chase various people to get this organised.

I don't understand how it can be ok to tell someone they have to remain off sick even when they a) want to return, and b) have been signed as fit to work by their GP?

Also, all this has had a more detrimental affect on DH's health than the cancer - surely they can't do this? Please offer any advice you can.

Sorry, meant to add that the OH meeting is scheduled for the end of next week.

I would be interested to see the replies to this, I am not sure of the legalities, but it sounds a bit odd, from my experience of this, because it does happen, but in the couple of cases I have seen the employer paid full pay and classed it as medical suspention, as they where preventing the return to work of the employee, not that the employee is and is done only in extreme cases.

I would be interested to know if he has had any OH input at the outset of his illness or at the very least when he hoped to return in November.

I currently have 6 clients with varing cancers, all apart from one are working, and that is because he is terminal and is trying to get his house in order and adjust from being a very fit young man 5 weeks ago with a bit of weight loss.

I tend to find my clients are very defencive thinking I will recommend sick leave, although due to this terrible run over the last 2 months, they are starting to relax and realise I am a great believer in in the benefit of normality, and you post backs up the fact that by not working this has affected his mental health in a detrimental way.

my advice tend to be that the employer should expect periods of sickness, and increased hospital appointment which will I would recommend are to be accommodated, and those in safety critical jobs I do have to but on a further modification of no operational work, but once I explain why, they are fine about it, as in if they are about to have a operation for instance, if they broke their leg and it needed surgery it could delay their operation for the cancer.

I am truely confused about the "special" treatment bit on phased return as his drop in hours could have been accommodated by using leave if they could not as an organisation do it any other way, but then again I do not know the full facts, but having been of since May last year he would have accrued at the very least 4 weeks leave to use between Dec and April, which could have been used to cut his days down, unless he had all of April off with seems unlikely, but if it is Jan to Dec annual leave system they could of in Nov allowed him to use any leave outstanding to get him to the christmas start date and extended his sick leave intitlement all be it only for a few weeks...imho again is a rum one.

on the leave thing, I always warn my clients it is not unreasonable for the employer to use accured leave but in the main I have found the employer takes it on the chin or meets them half way.

on the plus side at least they have now got a OH, I will watch this space with interest.

I can't offer any advice as to the details of this, any advice I could have given would have been out of date anyway -

but YES I agree it sounds very dodgy indeed - I personally ended up in a constructive dismissal/sex discrimination tribunal, because of similar accusations over "special treatment" & pressure to return sooner than I was capable, though in my case it was maternity leave, rather than ill health - though remembering what I went through & the frustration I felt at the unfairness of it all, similar in the call to extra early meetings etc etc I don't doubt it is making your DH ill - it affected my own health too & I wasn't already ill, so I really feel for him.

Have you spoken to ACAS ??? WEBSITE IS HERE - they can give free, independent advice on whether this is legal or not - it can be anonymous too if he prefers - theres lots of info on the website & you can ring & speak to an adviser in person.

It might be worth keeping a diary of events too, just incase

good luck & I hope he gets properly better & its all sorted out really soon

I have experience of this situation but had OH imput as well.I was off for 7 months and went down to half pay even though I had been signed back to work.My gp was at his wits as he was being forced to sign me off. The Union were useless locally so went to Headquarters I took out a grievance as basically the promised OH "back to work" was not happening. I was put back on full pay and this is what they must do if they are holding up your back to work. I passed the OH and resumed work but it was still 2 months .
OH is basically about your fitness for work Management do not have to go along with them but it depends on their policies in the end
It is stressful but the employer could argue it is better than disciplinary action for sickness

missingmum he had no OH intervention at any point - it was only mentioned at the last meeting at the beginning of May.

The whole return to work has seemed to have been a huge battle and as I think I said in my original post the actual cancer and subsequent treatment was far less stressful (I know how crazy that sounds but it's true). I can't help thinking that if he had had a phased return from November/January, there would not be a problem now. His confidence and self-worth have suffered tremendously.

In addition, we are aware of two other employees who have been allowed to return to work on light/amended duties - something DH was told was not possible, he had to be fully fit in order to return to his post. That has been part of the issue here - his post is part managerial office type work, but a small percentage (approx 20-15%) involves physical/outdoor work which he may not be able to do anymore. Sorry to miss this out - didn't mean to drip feed.

I feel so strongly that we should not be suffering financially (we now have a loan and I have had to take a second job) because they are delaying his return to work.

Rock thanks for the advice about keeping a diary - he is starting to do this.

Putthatbookdown I don't see how they can take disciplinary action against him for sickness - he wants to go back to work and has been signed fit by the GP, work are holding this up and keeping him on sick pay.

Just to add, cancer usually counts as a disability under DDA so they should make 'reasonable adjustments' to enable his return to work, something simple like light duties or reduced hours would certainly be a reasonable adjustment IMHO

It's not ok. There's nothing wrong with them seeking an OH opinion of course, but if he's been certified as fit to work by his own gp they can't force him to stay off sick and reduce his pay accordingly. If he's fit and prepared to work he should be paid accordingly.

If out of caution or to ensure they are doing everything right, they want to seek specialist oh advice, that's great, but if they don't want him in work until that's happened they need to just pay him full pay and get him to stay at home. If his medical certificate signing him off has run out, he has a fit note saying he is fit for work and he is prepared to work, they can't force him to stay off sick.

I agree that it's not good that they've waited this long to get occupational health advice.

I would suggest he write to them stating that as he is fit for work and fully prepared to work, he is no longer off sick and expects to be paid in full accordingly. If they deduct money from his salary because they don't want him to attend work then as far as I'm concerned that would be an unlawful deduction from wages.

Longer term this could develop into disability discrimination and/or constructive dismissal but at the moment the focus needs to be getting concerns in writing immediately.

Thank you flowery that is what I was thinking - never having any experience of this sort of thing before it's hard to know what is right and normal practice and what isn't.

He has a phone consultation booked with the disability law association on Tuesday and will get in touch with ACAS on Monday. It really helps, in an odd way, to know that this doesn't seem to have been handled correctly. It has been SO frustrating for us both - especially him. He just wants to get back to normal, but they seem to stand in his way every time

Good luck with it all I hope getting the right up to date advice means they will be shocked into pulling their socks up & treating him properly, its outrageous when you've both obviously been through so much already.

I'd second flowery's suggestion of the letter & go further in putting EVERYTHING in writing from now on, it shows he means business & won't be fobbed off - a mistake I made myself as I ran part of a small firm I'd worked for for years, so never thought to copy things into writing until it was all too late - a big mistake unfortunately.

The other thing to bear in mind & can be used to fight back with, is to emphasise the negative effect the stress of the way they are treating him is having on his health - this actually comes under "industrial injury" & can be VERY expensive for the company if it ever goes to court - that was the legal advice I was given at the time & he has 3 years to file for that, so be careful of anything they make him sign.

Also from my own experience, the "Special Treatment" comments from other staff members, may actually be factual, sadly there are some nasty individuals out there who can see things like this as a way to further their own careers & will complain & complain whilst smiling to your face, even though they know damned fine you are working hard & know circumstances etc etc - sometimes those people can also be the ones you've done the most for & least expect it from, so if he does talk to anyone at work about any of this, make sure its people he really CAN trust

Sorry I have not made it clear enough They are doing this to put themselves in a good light supporting him rather than saying you are sick so he is the door.That is the principle behind it They should however be giving him full pay if they are holding the return up Hence I suggested you take out a grievance In addition they can if financially able to offer him regular adjust ments so he can return I would suggest this as well. But OH advice will need to be sought.Reg adjustments can mean reduced workload other lighter duties This can be sought via OH under DDA/Equality act 2010 Hope this helps When he goes to OH please do discuss this with them xx

Thanks Putthatbookdown I'll let him know all that has been said. Unfortunately I can't go with him to the OH appointment. Thank - you all so much for your advice - will keep you posted.

I would make sure he has someone with him at the OH thing I really would It is invaluable to have another pair of ears
I went through the same as him I was sent to the gp signed back and then repeatedly sent back to the gp. I do not want to say anymore here -private messaging only I would really like toknow what happens at OH so keep me/us posted
Oh before he goes to OH make sure they have a report from a doctor treating him They will also need to know about any meds he is on and any follow-up appointments I will pm you

Quick update,

DH had phone consultation with Disability Law Association this am and they basically second all that has been said here so far. DH will now write to the company stating his issues. Still awaiting OH interview on Friday.

Thank you all so much for the support and advice - will keep you updated