No sick pay -- can they do that???

noni

Having read you explanation and having some points clarified about what is counted as sick days I was wondering how this works. Have apparently exhausted occupational sick pay entitlement of 2months full pay and assume that if I am off sick again that I will go onto 2moths half occupational sick pay.I was signed fit to return to work just under 8 weeks ago (after a workplace sustained injury) and work term time. Ihave just returned to work but it has been suggested that I don't return to work(by manager) as he wants Occ Helath doctor to assess my ability to do job. I didn't agree to this as I don't think he is medically qualified to judge and cannot afford to be on half pay. He reckons that he cannot guarantee safety at work due to volatile nature of difficult children we deal with and doesn't see another role at work being suitable as even indirect contact with children could be a risk.
Urgent reply needed. Thanks.

ben500

At a glance I would say he can do this, but, after seeing dags reply to the above I think you should wait for his/her advice because its impressive.

Fleago

Hi Noni,

Firstly, if you are a member of a Union, I would suggest that you contact them as a matter of urgency to support you with this situation. Secondly, I would expect the HR department of your employer to be involved if your manager is expressing doubts about your capacity to undertake the duties of your post but your own GP has certified you fit to work. The manager is entitled to express his concerns, but, as you rightly say, he is not medically qualified to make a judgement as to whether you should be at work on not. In light of your manager's concerns, I would expect that HR should be requesting that you attend an appointment with their Medical Advisor/Occupational Health Physician to seek their opinion as to whether you are fit for your duties - the MA/OHP may request that a Health & Safety Risk Assessment is done for you with regard to your duties in order to better inform their advice. The MA/OHP may also give advice as to what adjustments or restrictions should be placed on your job to allow you to continue in it. They may also concur with your manager that you cannot do this job, but in this instance I would expect that they would give advice on what sort of work you could do. Or they may agree with you and your GP. There's a whole range of possible outcomes that may arise from a MA/OHP report and your next steps, if needed, would depend on that report.

Now, I can only speak for what happens in this sort of situation with my own employer, but in a case such as yours, if there were genuine concerns that you should not be doing your job, despite your own GP's opinion, and there were no other duties available that took you away from the duties over which they have concerns that you could do in the meantime, it is likely that you would be "medically suspended". This would mean that the employer has asked you not to attend work pending further medical advice but the important bit is that you would be on full pay and accruing leave as normal until the MA/OHP had reported back. This is seen to be a more equitable state of affairs, meaning that the employee is not suffering financially whilst the employer carries out their investigations.

The reason why I am suggesting you involve your Union is that if your employer is insistent on you not attending work whilst they make their investigations you really want to insist that you should suffer no detriment through this since both you and your GP believe you are fit to be at work. Your Union Rep will also have experience of how your employer has responded in similar cases in the past.

In the absence of a Union Rep, or indeed in addition to, you might also like to seek the advice of ACAS - they have a very good website here and you will find their contact details on it.

Good luck and hope this helps

Fleago

noni

Thanks Fleago-

Manager took advice from HR and eventually sent me home shortly before normal finishing time. Had spent day photocopying. It was decided by Managers and HR that they could not guarantee safety for myself and others and that being in the building was posing a risk. They have arranged an appointment with Occ HEalth and advised that if the report says I am unfit to return I will revert back to sick pay @ whatever rate is applicable.
Not sure exactly how this works as I should now be entitled to full pay for 4 months and half pay for 4 months - will they take balance of ssp already used?
They also said that if they agree with GP then they would have to meet and do Risk Assessment- why hasn't that already taken place - I would argue that there are a number of skills that I could use at work but not being directly involved with kids.
Meantime I appear to have been "medically Suspended" although they did not use this term - on full pay.(seemed to want me to keep this quiet)
Concerned about the guarantee of safety - surely this would apply to everyone in the workplace regardless of injury? - any thoughts?

Fleago

Hi Noni,

Pay isn't really my sphere of knowledge, but I would think it would depend on your contract what occupational sick pay you would be entitled to if you have to go back on the sick as a result of occupational health's report. In the case of my work, occupational sick pay entitlement is calculated over a rolling 12 month period (and this is a contractual thing) so any absence in the previous 12 months counts towards full pay/half pay entitlement.

With regards to the Risk Assessment, I'm not surprised that they want to do this. Yes, there should already be a generic risk assessment on your job that concerns general safety, but it is not unusual for one to be done that is tailored towards the specifics applicable to an individual employee either when they start the job or later if their circumstances change.

If you are a member of a Union, I really can't urge you enough to make contact with them over your situation. As you say, you will have skills that could possibly be used elsewhere if you can no longer work with the children either as a result of medical opinion or as a result of the risk assessment. Having an experienced Union Rep onside would be invaluable to you as a support, epsecially if you end up having to really fight your corner. There is also the added dimension that your situation has come about due to a workplace injury and Union support would be helpful in this respect too.

I don't know the extent of your injury and how long the effects might last, but you might find it useful to look at the Disability Rights Commission website to see if you could perhaps be considered to be disabled according to the Act and to look at the protection this legislation gives to disabled people in their employment. It may not apply to you, but worth a look to see if it is applicable.

Good luck

Fleago

McDuck

dag wrote:

Like CIS suggests, what it actually means is that you'll get SSP if you qualify for it - but that's it. No more. And yes they can do that.

There's actually two facts here.

The first is that you have to be off work for four calendar days in a row before you can qualify for SSP for any time off work. Each spell of absence that lasts for four calendar days or more is known as a "period of incapacity for work". Spells of absence that last less than four days are not counted.

If you have not been off sick for four or more days within the last eight weeks, then the first three days that you would normally have been at work are "waiting days". From the fourth day that you would have been in, you then qualify for SSP at a rate of 68 per week, like McDuck suggests. That means that if you normally only work one day a week, you have to wait three weeks before you qualify for SSP.

If you have been off sick for four or more days within the last eight weeks, then the waiting days that you had in your last "period of incapacity for work" (PIW for short) are counted out of your current PIW.

For example - if you normally work monday to friday, and last time you went off sick was on a friday and you came back on tuesday - then although you didn't get any SSP last time, you did serve two waiting days - Friday and Monday - therefore you only have to serve one more this time. If you actually received SSP for your last PIW, then you will have served all three waiting days already, so you will not have any more waiting days for your current PIW - you will start receiving SSP from day one.

PIW's that occur within eight weeks of each other are known as "linked" PIW's.

It's not just the waiting days that are affected by this - but also the 28 week limit. You can only get SSP for up to 28 weeks - and any SSP you've had in previous linked PIW's is counted out of this limit. However, once you've been back at work continuously for eight weeks - without going off sick for more than three days in a row - then the clock goes back to zero and you can get another 28 weeks SSP - though you have to serve another three waiting days too.

Just to clarify - since a period of absence of less than four days doesn't form a PIW, you never get SSP for absence of less than four days - but on the flip side, absences of less than four days can never be linked, and can therefore never affect the SSP you might get in subsequent absences. For SSP purposes, it's as though absences of less than four days don't exist at all.

Erm - is that making any sense?

Sorry if it sounds complicated, but it took me ages to get my head round this. I used to work for a big outsourced payroll bureau, and a nice man from the Inland Revenue popped over and explained all this one day.

From an employer's point of view, they can pay additional occupational sick pay - however, if they do, then they must make it clear in their own records how much sick pay is covered by the SSP scheme. That's because they can reclaim a fraction of the SSP they've paid, by offsetting it against national insurance payments to HM Customs and Revenue. But they must not muddle up the occupational and statutory, and reclaim for a larger amount of sick pay than that which is covered by the SSP scheme.

In other words, an employer who pays you occupational sick pay is not allowed to reclaim any more than they would have done if they had paid you only SSP.

I hope that's helping.

Thanks that is a very detailed reply. My point is this, if you are away 3 days you get no SSP, if you are away 4 you get one days SSP. How does the system encourage sickness?

noni

Have contacted Union rep today who suggest pursuing claim against organisation.
I have known that this option was available to me but did not want to pursue it because of the stress it could lead to.
My problem is with the fact that my safety could not be guaranteed in the entire workplace regardless of me offering them alternatives. Iagree that a risk assessment should be carried out but think that I am cuaght up in backtracking and politics - ie give me alternative duties and have everyone who sustains injuries the same treatment.
Have an appointment with Occ Health tomorrow - not next week as anticipated - need to wait and see what happens.
Thanks for all your advice.

Fleago

Hi Noni,

You're very welcome I'm glad that you've got your Union to support you and hope it all comes to a satisfactory resolution, although it must be really stressful for you just now. Good luck with occupational health tomorrow!

Fleago