Dismissed after 28 week sick pay period, not warning from employer

dori2o

Can anyone offer some advice.

My dad has now been sick for 28 weeks and his doctor has said he is unlikely to find his way back into work. He is under a neurologist and orthopaedic consultant for his illness.

My dads employer has today written to him enclosing a completed SSP1, his P45, final payslip, holiday pay and latest sick note.

The letter thanks him for his service but says nothing else.

My mum has been on a website (Donut I believe) that states that:

1- The SSP1 form should have been returned at week 23.

2- If there was a possibility of returning to work this should have been investigated.

3- The employer should have written to my dads GP- with my dads consent- requesting medical evidence that he would be unable to return to work.

4- That if (as is the case) he is unable to return to work,the empoloyer should write to my dad and give the correct amount of notice (1 week for each year worked as he's been there 10 years) and subsequent pay relating to the notice.

Is any of this correct?

If so, as the employer has done none of the above, what action should my dad be thinking of now.

Just to reiterate, the employer has said nothing, and the first my dad knew of his dismissal was when his P45 arrived today.

LittleVoice

What has been written on the sick notes your father has been submitting?
What has been written by your dad on recent notes that have been sent with the sick notes?

dori2o

The sick notes have simply been for 8 weeks at any one time for 'Back Pain' (He is currently sufferring from Scoliosis, 4 slipped disks, and nerve damage)

He did not include any notes with his sick notes.

The employer has never made contact over the 28 week period. He was however aware that my had back problems as this has been ongoing for 2 years.

The whole relationship has been frosty with the employer for 6 years since HMRC declared under IR35 that my Dad was an employee not a contractor, and the employer demanded my dad pay half the National Insurance bill, and my Dad refused to do.

Googlewhacker

Basically it sounds like they have done loads wrong so the question is what do you want from it? Presumably he was at the end of the SSP or did he contractual sick pay?

SarEl

Get thee and thy father to an employment law solicitor immediately. Buy mum a big bunch of flowers. If what you are saying is correct (not disputing it - it's just that people sometimes forget to tell you crucial stuff!) then you have a gem of a case. Dismissal on the grounds of capability - that is what your mother has been browsing, requires careful following of procedures. It is also quite possible that on top of unfair dismissal, there is a case of disability discrimination here (not enough details to be certain about that, but it sounds rather like it is barrelling - as opposed to edging - that way).

dori2o

Googlewhacker wrote: »

Basically it sounds like they have done loads wrong so the question is what do you want from it? Presumably he was at the end of the SSP or did he contractual sick pay?

Hi he was at the end of the SSP. He was fully aware that his pay would end.

All he wants is his notice pay. The employer has paid him his 2 weeks holiday pay that he was owed.

zzzLazyDaisy

Yes, he is entitled to be given notice and restored to full pay for the duration of the notice - or to be given a lump sum payment in lieu of notice.

As far as all the other steps they should have taken - well yes, they should have had a meeting with your Dad to discuss the possibility of returning to work, but if your Dad or his GP had already indicated that there is no prospect of him returning to work, then this would have achieved nothing. Even if they should have taken certain steps, in reality your Dad has not lost anything because the fact is his entitlement to sick pay has expired and he accepts that he cannot return to work.

There is no compensation for failing to follow procedure, but just for the lost wages as a result of that failure, which in this case is nothing. If your Dad is disabled under the DDA, then there would have been a duty to make reasonable adjustments with a view to assiting him to return to work, but you are saying that is not possible anyway.

So, on the info you have provided, it is my view that all he is entitled to is his notice pay.

BUT, as always, that is a comment given by someone on an internet forum who hasn't seen the documentation and doesn't know all the facts.

I suggest that you speak to ACAS, as they offer free impartial employment advice and will be able to give advice tailored to your Dad's specific situation, and also tell him how to go about claiming his notice pay.

Just one further point - be aware that if your Dad ends up having to make a tribunal claim to get his money, there is a strict time limit (three months less one day)

Googlewhacker

dori2o wrote: »

Hi he was at the end of the SSP. He was fully aware that his pay would end.

All he wants is his notice pay. The employer has paid him his 2 weeks holiday pay that he was owed.

As SarEL has stated you could probably take them to the cleaners or at least negotiate a bigger payout but if he only wants the notice pay the it is a great lever to get this out of the employer

katsu

zzzLazyDaisy wrote: »

restored to full pay for the duration of the notice

Daisy, I don't understand why he should be paid full pay. The employer should have given him N weeks' notice but if he was not able to work those N weeks then the employer could continue to provide their sickness payment of £0 as he has exhausted their contractual sick pay, surely? As the Dad has not returned to work I see no reason for them to pay him for his notice period.

dori2o

This is the letter he got.

I understand that the receipt of a P45 does not necessarily confirm termination of an employment contract, but please forgive me if I am wrong, but this letter sure reads as though his employment has now ended.

As you are probbably aware you have reached your 28 week paid SSP from us. As this is the final pay that we make to you, I have enclosed the last payslip p45 your SSP1 form and sick note back to send to the job centre with your SSP 1 form.

I have paid you 2 weeks holiday that you have accrued since 1st January 2010 to 25th June 2010. This is paid on your payslip as 80 hours totalling £xxx

I hope this is all the information that you require and would like to take this opportunity to thank you for your service with the company, and we wish you well for the future.

LittleVoice

I think he may have been entitled to more than 2 weeks holiday pay. The minimum statutory holiday is 5.6 weeks a year (224 hours in the case of your dad). As he has been off sick for 28 weeks, I presume he will not have been paid for any bank holidays. If he did not receive any notice to expire on 25 June, then his finishing date for accruing holiday should be ten weeks from the time that he first received notification of his termination. That would take him way past the half-way point in the year, not 80 hours worth of holiday. Even if he had received notice, he would still be entitled to more than 80 hours pay in my view because of the BHs.)