being sacked while off sick, question about sick pay

dag_2

At the moment I'm off sick. There was a disciplinary hearing yesterday, and my employer thinks they've got grounds to instant dismissal as gross misconduct, that is, without any notice.

Fortunately the union rep has bought me some time - until Monday. If I resign rather than wait until I get dismissed, I may be able to get three months' severance pay.

What I'm wondering is - what about sick pay? I understand that if I get dismissed while off sick, they might not have to pay company sick pay, but they will have to continue to pay Statutory Sick Pay until 28 weeks or until I say I'm fit to return to work, whichever is sooner. But do I still get this if I resign while off sick?

And if not - will I be entitled to Incapacity Benefit? And will it be based on the Own Occupation Test, or will I have to fill in a Personal Capability Assessment form?

The thing is, if I tried to claim Jobseeker's Allowance, I'm likely to get a sanction, regardless of whether I get sacked or resign - and the only way to avoid that problem is to stay on sick leave until six months have passed or until I get another job, whichever happens sooner. This is a lot easier to do if you don't have to do a Personal Capability Assessment. Thanks.

mike_paterson

Do they have grounds for gross misconduct ? If you have been off sick, when did this gross misconduct occur - presumably before you were off sick ? If so - how long have you been off sick and why is it only now that they are threatening you.

As you have union official involved and the situation is ongoing I presume that they have valid reasons for the gross misconduct decision.

Worth trying ACAS they are very helpful in these things generally and provide a free service. or call the CAB as well.

Other thing is - do you really want to work there now ? Get them to put their full offer in writing.

Good Luck

dag_2

actually - things have changed since I last posted. It looks like I won't be able to get that three month's severance money after all. The manager of the department wants to make an offer but the HR manager is apparently blocking this - a case of the tail wagging the dog, it would seem.

They think they've got grounds to dismiss me, for failing to disclose previous medical conditions when starting the job. However, they've got no proof, not least because my occupational health records are confidential. All they've got is my word - or, should I say, the way they've interpreted my word and taken it out of context.

Why is it only now that they've threatened this, when they could have done it earlier? Why indeed. Presumably it's convenient for them to do it now while I'm off sick - I've only been off sick three weeks. Maybe it's also got something to do with informal allegations I've made about bullying, and the fact that I'm continuing to see an occupational health counsellor to help me deal with this. Of course, there isn't an official reason for this delay.

I plan to pop to the CAB this afternoon.

rrwfotr

Hi I would go straight away to a local lawyer and get him to write a strongly worded letter to your employer stating that if you are sacked you will sue for wrongful dismissal.

They can't treat you like this if what you say is correct.

mike_paterson

I think that you have a strong case here. If you answered their questions fully then thay have no case at all.
I am suprised the union rep is not fighting this.

I'd be suprised if they could even attempt to try the gross misconduct trick seeing as the supposed gross misconduct happened before you were employed by them !!

Surely they could have got you to do a medical when you joined if they needed to ?

How long you have been employed by them is also important if under 2 years you are in a weak position. If over 2 years than it is a much stronger position.

reelcrazy

Are you public or private sector?

dag_2

I've been to the CAB, they say that being off sick doesn't stop you being dismissed, though an employer can't sack you merely for being off sick. However, if you are sacked or resign, SSP stops when the date of resignation becomes effective - that is, at the end of the notice period. If you're given pay in lieu of notice, SSP stops straight away. And you need to claim Incapacity Benefit and Income Support.

The other point that the CAB made is that if it was really gross misconduct, they would have escorted me off the premises and run the risk of later action, without having the hearing. But that hasn't happened. They clearly don't see me as a security threat!

The settlement offer is back on - but this time it's only two months.

About this particular case - no the union aren't going to let it go, but the employer's argument is that if I didn't withhold information on the health clearance form, then why did I suggest otherwise at an earlier date? So in other words, I've given inconsistent information, and somewhere along the line, I must have been lying.

Hmph. I guess that means I've been a bit clumsy and unguarded with my words! Still - I hated the job anyway - though perhaps I might not have hated it so much if the manager hadn't humiliated me in front of the other staff from time to time. C'est la vie.

The employer is an acute NHS Trust in London. I've been there less than two years.

MrSmartprice

How reassuring that the "caring professions" can treat their staff so kindly!

rrwfotr

dag wrote:

I've been to the CAB, they say that being off sick doesn't stop you being dismissed, though an employer can't sack you merely for being off sick. However, if you are sacked or resign, SSP stops when the date of resignation becomes effective - that is, at the end of the notice period. If you're given pay in lieu of notice, SSP stops straight away. And you need to claim Incapacity Benefit and Income Support.

The other point that the CAB made is that if it was really gross misconduct, they would have escorted me off the premises and run the risk of later action, without having the hearing. But that hasn't happened. They clearly don't see me as a security threat!

The settlement offer is back on - but this time it's only two months.

About this particular case - no the union aren't going to let it go, but the employer's argument is that if I didn't withhold information on the health clearance form, then why did I suggest otherwise at an earlier date? So in other words, I've given inconsistent information, and somewhere along the line, I must have been lying.

Hmph. I guess that means I've been a bit clumsy and unguarded with my words! Still - I hated the job anyway - though perhaps I might not have hated it so much if the manager hadn't humiliated me in front of the other staff from time to time. C'est la vie.

The employer is an acute NHS Trust in London. I've been there less than two years.

NHS trust says it all, my wife was employed by a NHS trust in Kent. The managers where really mean and walked round pushing their weight away for no reason apart for wanting to look important. What she did was leave and got a better job. No wonder the NHS is in such a state. The phase "pay peanuts get monkeys" comes to the mind.

KathrynPenguin

mike_paterson wrote:

How long you have been employed by them is also important if under 2 years you are in a weak position. If over 2 years than it is a much stronger position.

I think you may be a little out here Mike. A few years ago it changed so you can claim unfair dismissal after 12 months rather than 2 years - its something I have bookmarked as my husband has claimed unfair dismissal twice!

If you need any help check out the DTI site - although you might need a law degree to understand much of it.

hex2

One years service you can claim for unfair dismissal. Ring ACAS - they tend to be practical and helpful in their advice, and some branches of CAB just ring them if they dont have an employment law person.
I should raise a formal grievance stating that you feel that you are being victimised. Ideally against the person who is handling the proceedings against you. They then suspend your discilplinary whilst investigating your complaint.
If you plan to persue the unfair dismissal then sit tight and let them sack you. Use the unions to delay and make all the requests for information that you can. Put in a written statement clarifying the truth of the situation. For them to make a settlement offer that prevents you form claiming there will have to be a legal compromise document signed. If they offer this insist that they pay for you to see a solicitor to advise you. Compromise agreement si only valid if you have been advised by an appropriate person - CAB can do it, but solicitor will tell you if you are selling yourself short.
Did you mislead them about your health? You should be aware that an employer only has to have a reasonable belief, not definite proof. The tribunal will look at whether they have followed procedure, and if they acted fairly in the circumstances.