where will this end?

Uncertain

Pete111 wrote: »

Very true.

As I mentioned, a lot of posters seem to think that employment law is enforced and ruled on like criminal law. Many employers are happy to bend/break employment law principles as they know only a tribunal can decide for sure and often things do not get that far. In addition, tribunals place an awful lot of stock in what is or isn't reasonable / likely rather than the absolute letter of legislation.

This is precisely why the op'S ex is in a spot of bother.

Also although ACAS are usually fairly good (though not in this case, sounds like the rep was very green indeed), they do not represent the voice of certainty - their opinion is only that I'm afraid.

Pete111 makes some excellent points in this and a couple of earlier posts.

Some very commercial businesses I have worked with (not for I may add!!) have an informal HR policy of "we will do exactly as we like and, if all else fails, pay up"! OK, even they try to avoid the "big ones" like race and sex discrimination but that is about it. The penalties for getting it wrong are not very severe in corporate terms and they may see other benefits such as keeping staff on their toes.

The situation here is a little different. The lady (I infer) has a low paid job with a large supermarket who have many thousands of similar staff.

The majority of such staff (not all by any means and I'm not suggesting this lady for one moment) are not terribly bright. Also, they tend to have very limited resources to fight back other than possibly union membership. Sadly this goes with the territory.

The supermarket will also have a large and fairly low grade HR department who will treat the staff with less regard than their baked bean supplier. By that I mean they want the baked beans on time, neatly packed, with the least hassle and at the lowest price. Any regard at all for the baked bean company will be regulated only by how easy it is to find another supplier. Just the same with the staff.

I'm 99% certain that, should they sack her, it would be possible for her to win a tribunal claim. At then end of the day she was medically certified as sick. They can't argue with that so the only possible grounds would be the unfortunate remark. If she has a clean record this does not amount to gross misconduct unless we are not being told something or they manufacture some evidence.

If this goes the distance they will offer some modest settlement, no doubt with a confidentiality clause. As far as the other staff goes she has been sacked so it cracks the whip and keeps them in order, however it keeps it out of the local paper!

Pete111

Uncertain wrote: »

Pete111 makes some excellent points in this and a couple of earlier posts.

Some very commercial businesses I have worked with (not for I may add!!) have an informal HR policy of "we will do exactly as we like and, if all else fails, pay up"! OK, even they try to avoid the "big ones" like race and sex discrimination but that is about it. The penalties for getting it wrong are not very severe in corporate terms and they may see other benefits such as keeping staff on their toes.

The situation here is a little different. The lady (I infer) has a low paid job with a large supermarket who have many thousands of similar staff.

The majority of such staff (not all by any means and I'm not suggesting this lady for one moment) are not terribly bright. Also, they tend to have very limited resources to fight back other than possibly union membership. Sadly this goes with the territory.

The supermarket will also have a large and fairly low grade HR department who will treat the staff with less regard than their baked bean supplier. By that I mean they want the baked beans on time, neatly packed, with the least hassle and at the lowest price. Any regard at all for the baked bean company will be regulated only by how easy it is to find another supplier. Just the same with the staff.

I'm 99% certain that, should they sack her, it would be possible for her to win a tribunal claim. At then end of the day she was medically certified as sick. They can't argue with that so the only possible grounds would be the unfortunate remark. If she has a clean record this does not amount to gross misconduct unless we are not being told something or they manufacture some evidence.

If this goes the distance they will offer some modest settlement, no doubt with a confidentiality clause. As far as the other staff goes she has been sacked so it cracks the whip and keeps them in order, however it keeps it out of the local paper!

Cheers - you too clearly know what you are talking about Uncertain!

The only thing I would add is that a company can challenge a Drs note via a referral to Occ Health/other Dr (and another, differing opinion being subsequently given) This would usually be done before any disciplinary meeting however and as such, I concur 100% with your assessment of the situation.

Uncertain

Pete111 wrote: »

Cheers - you too clearly know what you are talking about Uncertain!

The only thing I would add is that a company can challenge a Drs note via a referral to Occ Health/other Dr (and another, differing opinion being subsequently given) This would usually be done before any disciplinary meeting however and as such, I concur 100% with your assessment of the situation.

Agreed, but weeks on an OH physician can't tell them for certain whether she was too ill to work (or not) a month ago. Also, they can't force her to see another Dr or OH department. Equally they can't force her to agree to her GP giving them a report (and probably wouldn't want to under the circumstances)! The GP saw the patient, had the records and will tend to stick to his judgement for obvious reasons.

tigtag02

Uncertain wrote: »

What the previous replies are forgetting is that this lady has been certified as sick by her doctor.

The doctor is medically qualified and has access to her pervious medical history. He has also seen the patient.

Somehow I doubt either the supermarket or the previous posters have this information or any medical training.

OK, it is possible that the wool has been pulled over the doctor's eyes, but it is equally possible that they lady may have a history of psychological problems that are serious and triggered by certain situations.

Given that the lady has medical evidence on her side and the supermarket do not I would have though they are on a very sticky wicket.

Whilst I agree with you 100% the company are completely within their rights to withold CSP (and even SSP if they believe the sickness is not genuine)

tigtag02

Uncertain wrote: »

The lady has been certified as sick. End of. The supermarket are not in a position to challenge that.

What they MIGHT be able to say is that the "threat" to go sick might in itself amount to a disciplinary matter.

However, given that the sick certificate was given for stress, there is a strong argument that she was suffering from this at the time of the "threat".

I really don't see this going far.

They are and they can insist on an indipendent medical evaluation.

rupee99

tigtag02 wrote: »

Whilst I agree with you 100% the company are completely within their rights to withold CSP (and even SSP if they believe the sickness is not genuine)

Whilst I agree on the first part and they can, in very exceptional circumstances, withold self-certified SSP there is no precedent for witholding medically certified SSP, as in this case. To do so would probably be a criminal offence, it would certainly be defamation of the medical practitioner concerned by impuning his/her professional reputation. The only possible exclusion would be if they had evidednce that beyond a reasonable doubt the employee had forged the documents.

Uncertain

tigtag02 wrote: »

They are and they can insist on an indipendent medical evaluation.

No, they can ask but not insist.

As I said above, no doctor she sees now will be able to say for certain if she was, or was not, too ill to work four or six weeks ago. There is one professional medical opinion as to that and he signed a certificate!

Uncertain

tigtag02 wrote: »

Whilst I agree with you 100% the company are completely within their rights to withold CSP (and even SSP if they believe the sickness is not genuine)

The qualified medical opinion was that she was unwell. I doubt many HR staff have spent six years at medical school followed by several more years post graduate training. Even if they had it is usual to see the patient!

tigtag02

rupee99 wrote: »

Whilst I agree on the first part and they can, in very exceptional circumstances, withold self-certified SSP there is no precedent for witholding medically certified SSP, as in this case. To do so would probably be a criminal offence, it would certainly be defamation of the medical practitioner concerned by impuning his/her professional reputation. The only possible exclusion would be if they had evidednce that beyond a reasonable doubt the employee had forged the documents.

Please see form E14 from the HMRC website - whilst I agree that exeptional circumstances would precipitate SSP being witheld I was merely pointing out that it is possible for the employer to do so.

Regards
tt

tigtag02

Uncertain wrote: »

The qualified medical opinion was that she was unwell. I doubt many HR staff have spent six years at medical school followed by several more years post graduate training. Even if they had it is usual to see the patient!

CSP is ALWAYS at the discretion of the management - regardless of what medical evidence the employee provides.