Redundancy vs Medical Dismissal Payments

nbedin

Hi
I'm looking for advice.
I have entirely legitimately been off work sick for 15 months. My employer has been very understanding, and I have no problem with them. I am protected by the DDA, but within that context, my employer has fulfilled every obligation they have.
They have intimated very plainly that, having followed all avenues, they now intend to "medically dismiss" me.
I have heard unofficially that if I request "Voluntary Redundancy" instead, I may be entitled to more cash than if I wait for them. I have no idea how or why.
I'd appreciate any legal clarification asap.
I am in Scotland; work for a large retail chain; have been employed continuously since Jan 2003; and my dismissal will probably be formalised in the nexct few weeks. Should I speak to them first?
Regards and thanks

Horace

Redundancy means that the post has disappeared the post remains although you are being medically dismissed. Your company can medically dismiss you on incapability grounds regardless of whether or not you are covered by the DDA.

You could possibly seek retribution through the Employment Tribunal service if your employer has failed to make reasonable adjustment to accommodate your disability.

I think I would wait and see what the company has to say before doing anything.

jdturk

Are you sure you will get any money of them? If they sack you for capability reasons apart from accrued holiday I can't see why you would get a pay out.

Uncertain

Technically it is a post that becomes redundant, not a person. In other words if your job still needs doing the post is not redundant.

That said, if it means a better deal then it is not really your problem! However it could leave the firm open to a comeback so I would be a little surprised it if they went down that route. Unless of course they are "downsizing" the workforce and deal with your case as part of this.

As others have said you can ultimately be dismissed on medical capability grounds even with a DDA condition if they have done all that is legally required. However many employers are nervous of this and they may be looking to reach a compromise agreement. This would mean that you depart with a sum of money and in exchange you sign away your right to bring any claim against them (as far as the law allows). By law you have to receive independent legal advice for this to be valid and it is normal for the employer to pay towards this. These agreements normally have confidentiality clauses and an agreed reference.

Presumably you have taken some legal advice regarding the DDA aspects of your case? You may well find your house or car insurance provides cover for this.

lulu650

Uncertain wrote: »

....By law you have to receive independent legal advice for this to be valid and it is normal for the employer to pay towards this....

If you're in a union try them for advice first. Union officials should be trained to advise and sign off a CA if that's a route your employers pursue.

Uncertain

lulu650 wrote: »

If you're in a union try them for advice first. Union officials should be trained to advise and sign off a CA if that's a route your employers pursue.

I would strongly advise against this in view of the DDA aspects of this case. If I was in the OPs position I would want independent professional confirmation that the firm had (not just claimed to have) taken all legally required steps. They may well have done and are being 100% fair but if not it could open the door to a very substantial claim.

MoneySavingMakesMyDay

I have sent you PM, hope it helps.

missile

MoneySavingMakesMyDay wrote: »

I have sent you PM, hope it helps.

me too, hope you get well soon and good luck :A

nbedin

jdturk wrote: »

Are you sure you will get any money of them? If they sack you for capability reasons apart from accrued holiday I can't see why you would get a pay out.

My understanding is that, legally, my "Medical Dismissal" (sic) is payable in the same way as "Redundancy" - am I incorrect?

nbedin

Uncertain wrote: »

I would strongly advise against this in view of the DDA aspects of this case. If I was in the OPs position I would want independent professional confirmation that the firm had (not just claimed to have) taken all legally required steps. They may well have done and are being 100% fair but if not it could open the door to a very substantial claim.

Thanks. I'm not in a union - I never have been, never would out of choice; and it's a non-unionised environment.
What is an OP?
Thanks

jdturk

nbedin wrote: »

My understanding is that, legally, my "Medical Dismissal" (sic) is payable in the same way as "Redundancy" - am I incorrect?

I'm not sure to be honest. If the injury had been caused by work then I could understand you being medically dismissed and recieving a payout (a compromised agreement)...however if you are just unable to do the job from an external reason then I would have thought they would dismiss you without a payout on capability grounds