Signed off as sick without being advised as such - is it legal??

[Madamecastafiore]

Hi knowledgeable people.

I wonder if someone could give me some advice. I have been off since Mid June after making a complaint about a couple of people at work and racism issues.

Am now 25 weeks pregnant and was at the tine of the complaint told to go home, I was told that I would be on full pay and an investigation was started.

I have seen occupational health who advised that I should not go back to work until the issue was resolved. The issue has now been resolved (as much as the organisation I work for ever resolves anything - pick up carpet and sweep underneath!!) and I am due to return to work tomorrow after seeing occupational health again today.

I have never been signed off sick, never been asked for a certificate but upon being paid found out that I have been put on half pay (sick pay since the beginning of July) on the request of my manager.

Now I would not have gone back to work regardless and have been on holiday for 2 weeks of the period I have been off of work but am a bit shocked that they told me to not go into work and that I would be on full pay and at no time was I advised that this would be changing. I am not scraping the barrel for money but this change to my income will make a difference when it comes to my maternity pay which is what is bothering me most. (I do have an email stating that I would be paid full pay and have nothing stating that I would be paid anything less or be signed off as being sick!)

Can they tell me not to come into work and then just decide to pay me as though I am sick? I could not have worked as the anxiety I was suffering was immense and if I had gone back I would have had to work with the people who I had put in a complaint about and their behaviour was just awful.

Would it be beneficial to get a retrospective sick note from doctor saying I had work related stress?

Possibly, but not necessarily, so for now I would concentrate on getting evidence in writing, email HR and act "confused" to get in writing (if you don't already have this) what is supposed to have happened so they cannot deny this later, also try to get hold of your work policies and procedures on absence management, maternity leave and pay, grievance and dignity or equality at work (exact wordings can vary).

If you could get hold of the policies via a colleague, I would do this to avoid arousing suspicion. Then read everything in detail !

I personally would not contact the employee helpline as these are not anonymous and some info is fed back to managers.

Consider contacting an employment solicitor once you have gathered evidence, or if you want to tackle yourself you could raise it as a grievance once you have the policies, they will give guidance on how to do this.

As you are not in a union, you could ask a (trusted !) work colleague to help you, also I am happy to help more on here if I can.

Forgot to add - you could also call ACAS helpline for advice on 08457 47 47 47

Be aware that in employment law there are strict timescales, three months from the most recent, related event you are complaining about and you need to have raised the issue to try and resolve it first of all directly with your employer. An unlawful deduction from wages can be claimed back via an employment tribunal, you can also make a claim for sex discrimination.

But as I have already said, you will need evidence to do the above.

Thanks coconut, you are being so kind helping me. I feel a little overwhelmed by it all and think if it were not for mumsnet I would just let it go.

So I email hr manager and ask her on what grounds I was being paid sick pay rather than full pay and then take it from there?

It is only a couple of hundred quid too but to me the unfairness is what is really getting me.

If it impacts on your maternity pay, it could be more?

It will cost to use an employment solicitor, and also to take to employment tribunal as the rules changed recently.

However, it is free to raise a grievance, and HR should know the laws so if they think you know your rights, then that may make them think again and just pay you!

What you put in your email depends really on what evidence you have so far and the details of what has already happened?

Do you already have emails and or letters saying what is supposed to be happening?

No nothing at all just a letter stating what the out come of complaint was and that I was expected to return to work today when it was actually agreed that I would at least have a conversation with OH first.

They have not really done anything properly IMO. I bet I won't get a return to work interview tomorrow either which is trust policy if you are off sick!

HR told me that the change to sick pay was not communicated to me as I was 'on leave'. If by that they mean annual leave that's crap as I didn't go on leave till 2 weeks later and if sick leave well they should have written to me IMO or asked that I get a sick note from my doctor.

Thank you for this.

Have you been given any copies of Occ Health reports?

In general, the managers are responsible for decisions and HR and OH roles are to advise, this is generally only in support of the employee where it keeps the employer out of court.

As you have noted, they are clearly not following their own policies, if you are off sick when you have annual leave you can claim your leave back, but I could see them trying to get out of that one too!

So you only found out about the sick pay in your payslip?

I have the report but just says due to pregnancy advisable that I stay off work as could be risk of early labour etc.

Dr said I would be signed off with work related stress.

I only know I wasn't paid as normal as noticed not as much went into account and rang hr who said they had received email from my manager stating I should be put on sick pay. Then rang HR and they checked with he manager who said yes, that's right they changed me from full pay to sick pay as OH said I was unfit for work!

I still have no payslip. The lady I complained about would have been responsible for sending it to my home address and obviously she not that bothered.

Sorry if not answering all questions when you are being so helpful but am on iPhone so can't check stuff without posting and then going back to check stuff!!

I may fall asleep shortly! Was up at 4.45 nerves and DH thrashing about downstairs as dog was Poorly in the night and he was trying to clear it all up without throwing up!!

I do really appreciate your help though, just don't want you to think I rude if just disappear!

Will probably be up at crack if dawn again tomorrow as will be bloody bundle of nerves!

OMG they really are shockingly bad, and I thought I had seen some dismal situations already !!

You are legally entitled to a payslip!

Try and take it easy, you are pregnant after all and that must be your priority right now.

It is difficult to know how to play this as they are so inconsistent, but based on what you have said, here is what I would do in your shoes:

1. See if they do a return to work tomorrow, I bet they don't, as you say you weren't sick, you were medically suspended due to your pregnancy and work related stress, therefore if they do do one, say this and do not be drawn into commenting further.

1. Email HR Manager and say you haven't received a payslip but you do not seem to have been paid properly? If they reply saying oh but you were off sick, reply with the email about full pay and state as above, you were medically suspended etc. and expect your pay to be corrected immediately, if you want to really push it mention vaguely that you have taken legal advice, then come back and tell us how you are getting on

Take Care and try not to worry, easier said than done I know!!

Thanks coconut. Will do exactly that tomorrow.

Shocking is about it for the whole Trust really.

I have to say that if it were a private company it would need to bloody pull its socks up or be sued by everyone and go out of business!

Thank you again. Will update tomorrow.

I may go see doctor tomorrow too to get a cert just in case I end up needing if too.

Thanks for help, fingers crossed I scare the hell out of them in a quiet unassuming way of course! .

P.S. Get and keep copies of everything at home, for future reference.

and don't worry, I wouldn't think you were rude, I understand how hard it all is to find a way through this kind of rubbish!

See your Dr if you want to and it helps you, but I would be careful of buying into their rubbish about you being off sick, you can always get a certificate later if you need it, of course! Hope you manage to get some much needed rest tonight x

Hi Chaps

Well today went ok in terms off getting through the day and it not being too stressful.

I did email the HR manager asking for my payslips and then was handed them by an administrator as they had been sent to the office I would be starting in. No reply at all from the HR manager as to why I had not been paid my full salary although I had questioned why I hadn't!

Got a copy of the letter sent to Manager from OH and it doesn't say anything about not being fit to work. Couple of paragraphs from it below are pertinent though:

'You will also be aware that MC is 20 weeks pregnant. It is well documented that increased stress in early pregnancy can increase the risk of miscarriage and the risk of premature labour, pre-term births and low birth weight in more advanced pregnancy. On review of this I would advise and early resolution of the above for the sake of all parties. '

'We discussed whether MC would be fit to attend a meeting if requested and she stated that she would be free to attend. I assume that any adjustments if required will result form this meeting. Until you have met with MC I would recommend that she continues to refrain from working.'

I was signed off sick from the date of this meeting until I met with HR and the admin manager and as soon as that meeting took place was put back onto full pay, although as no health care professional had said that I was unfit to work in my opinion one also never said that I was fit to work it was just agreed by HR manager that I would return to work after my holiday. At the meeting it was requested that I see/speak to OH again but in the letter they sent me detailing the outcome of the meeting this was not mentioned and they just wrote that I would return to work on the Monday upon return from my holiday.

Today I did not have a return to work meeting either which is part of the Trust policy if you have been off sick???? So does that mean I have not been off sick or they just do not feel that I need one?

I have a catch up with my direct manager tomorrow to talk about how I am going to work remotely and think maybe I will have to address the sickness issue with her as she was the one who sent the email saying I was to be signed off sick.

Am sitting here ploughing through different policies to see if there is anything that can help me - there are lots of words!!!!

Hi MC glad today wasn't too bad for you and sounds like you have also been busy collecting evidence and stuff!

Do your payslips say sick pay on them?

The following comment by OH is very important:

Until you have met with MC I would recommend that she continues to refrain from working

You were medically suspended, that is your evidence.

Also you have not had a "return to work" unless that happens at the meeting with your manager tomorrow?

I would continue to bluff it out - don't mention to manager and continue to email HR getting everything in writing and keep going higher until you get your money paid.

The phrase you should use is "unlawful deduction from wages" as you were medically suspended by OH and therefore should have been on full pay. Don't get drawn into detailed discussion and don't provide any sick notes - you don't need them, just your OH letter and your payslips plus emails from your manager and HR.

Have you had a Risk Assessment completed by your Manager?

(Medical suspension should be in either the Maternity and or Absence Management Policies).

Thanks coconut you are bloody wonderful. Can you PM me so I can at least say thank you properly please???

Risk assessment done during meeting with HR. think it just says about me being moved to a different building, no other issues that they had to take into account.

I will email HR again in the morning about illegal deduction of earnings and everything else you have said, hopefully will make them back track as I think there is nothing in that letter that stated I was 'unfit to work'.

Do you think I should say about sexual discrimination? Why is what they have done covered by that? Is it because they would not have taken that stance if I were a man?

MC x

Just looked at payslip. It does list SSP on it!!!

Hi MC, I am glad to be able to help you x

The Risk Assessment should be specifically related to protecting you as you are pregnant and also in this case regarding any stress you need to be protected from. It is a legal requirement.

Just to explain, the medical suspension is because you needed to be protected from harm and on OH advice your manager took you out of the workplace. Be careful about any conversations you get into about this, as if they can they will try and twist it around on you. It is not the same as being off sick. Similar but different and your manager has obviously confused the two

You are basically correct about the sexual discrimination, they have paid you less for a reason relating to your pregnancy. Again, I would be careful about getting too far into that with them unless you need to, because they may start saying it is stress and not pregnancy, even though the two are inter related in your case, men can also obviously get stressed, especially if they worked at your work!!

That's fab. Thank you so much.

I would really like to send you a bottle of wine though, I can't tell you how much having support through this has helped!

I have so far cried watching Alan Titchmarsh on 'love your garden' and when I heard 'whole again' by Atomic Kitten on the radio tonight!!! So a bit of friendly professional advice and hand holding goes a long way!

I will update tomorrow, if she actually has the decency to reply to me this time!

Thank you again.

You are very welcome!

I hope everything works out for you, just keep on at them, give them up to a week at a time to respond and then just keep sending it higher until you get the desired response. You can then send me a bottle of wine with the money you get back, if you would like to!!

Looking forward to your updates, Take Care x

Hello there MC, it sounds like you are getting some very good advice from CS, I really hope things are going okay at work and that you get on ok when you meet your line manager, looking forward to hearing how you get on and hopeful that they make it as straight forward as possible...

Look after both of you and hope the dog gets better!

Thanks chaps.

Apparently was medically suspended for first 2 weeks and then on sick from after saw OH till when I met with HR who then decided I was fit to work so my annual leave was paid normally but marked as I had took annual leave.

Have said I would like them to rethink their decision, my line manager told me HR told her what to write to payroll.

So am awaiting a decision.

Am going to write an email to HR director at the weekend asking her to justify their actions and how they can effectively dick my pay without even giving me notice. Will use all the clever angles that you guys (specially coconut) have given me and see what happens.

Feel a lot better though, lots of that due to your support. Have decided to take maternity leave from end of September so with the leave I have I have 24 days left and am counting down.

The new office I am at is nice though and its so nice not to have the worry of people flying off the handle and taking offence at littlest thing.

Good thing is someone asked me why I was at other office today and when I said the word racism he immediately said the woman's names. He said lots of things she says make him feel uncomfortable and he has been thinking about saying something but will most do something about it now!

Dog much better thank you. But DH has now decided that she going to ha be to sleep in garage just in case she does it again! He said will get her crate in utility room in cold weather though. He worried that she will do it again once baby is here!

So I feel million times better. Am seeing specialist midwife tomorrow about anxiety so that will be useful.

Will update next week but thank you all again. You have made a bloody awful time a lot better. To the power of mumsnet!!!