Constructive dismissal? harrassment?disciplinary? HELP

popsy2

thanking you for your input

vax2002

He is now in the same boat as the majority of workers unfortunately, the sick pay has stopped, so the problem has reached its climax.
In industries like the building trade where often workers dont even get SSP due to sub contractor scams I have never heard of anyone of ill with "stress" despite it employing over a million workers. Its no work = no money
As I see it, he has two choices, go back to work or look for another Job, the third which we shall not mention is watch your family suffer because he can not stand up to a few bullies.
I am sorry this advice is harsh, but it is time to meet the truth, the sick pays stopped, so thats the game over really.
Its decision time

ikati5

If he is long term sick the company cannot dismiss him or harrass him until he is fit to return to work, this could be a year or more. While he is claiming ssp he will be entitled to hb, ctb etc. Tell him to concentrate on getting better and forget it, at the end of the day it is only a job, it is not the be all and end all, being without the income is a bit inconvenient but there are benefits and agencies out there to help. Don't let the B's grind you down, life is too short and too precious to waste worrying about carp!

Jarndyce

Firstly, I can't believe you have let things get to this point. He had a warning for swearing for pity's sake, not a bounty put on his head.

You either need to pull yourselves together and get him back to work, face the music, clear the air and move on, or he needs to resign and look for another job. There is certainly no claim here at all.

popsy2

Its really the way they are dealing with it. He has only been off for 3 weeks. they are threatening him with negligence. his contract says he should have ccp, but they have decided to only pay ssp whilest they "investigate". they are putting loads of pressure on him. he never is of sick. I am also worried that if he just resigns that they might decide to sue or something. I may not have put all the facts down for any of you to make a fully informed answer. He is just not being given the opportunity to fight his corner, as they are bombarding him with threats left right and centre.

Googlewhacker

ikati5 wrote: »

If he is long term sick the company cannot dismiss him or harrass him until he is fit to return to work, this could be a year or more. While he is claiming ssp he will be entitled to hb, ctb etc. Tell him to concentrate on getting better and forget it, at the end of the day it is only a job, it is not the be all and end all, being without the income is a bit inconvenient but there are benefits and agencies out there to help. Don't let the B's grind you down, life is too short and too precious to waste worrying about carp!

This is utter rubbish, the company can go through capability procedures to dismiss the person if they are not capable of doing the job. It is in the interest of the company to do this as the employee will be accruing holiday whilst off sick.

SarEl

You are confusing a number of issues here. They may seem related - they aren't.

If his contract entitles him to company sick and the employer has no discretion on this matter, then he is entitled to company sick pay not matter what the circumstances, and refusal to pay would be an unlawful deduction of wages and breach of contract. But you need to be certain that the employer has no discretion over the payment of company sick pay.

On the issues of the dsiciplinaries - well it would appear that the first disciplinary was warranted (it seems that he agrees that he swore at work - you shouldn't need telling that this isn't acceptable); on the second occasion the system worked because an invetsigation was held and it was found that there was no case to answer; and the third one is, as yet, only an investigation. It may be unpleasnt, but there is no evidence here that the employer has done anything wrong - they haven't found him guilty of anything he hasn't done. It may not be what you want to hear, but employers are lawfully able to invetsigate alleged misconduct and where an employee is found to have committed the misconduct, to discipline them. This isn't evidence of "gunning for him" and it isn't evidence of unilateral breach of contract on the employers part, so you wouldn't stand a chance of getting past "Go" in terms of a constructive dismissal claim.

In relation to the managers wanting to speak to him, you don't say why they are asking to do so, but given the period of time he has been off sick and the diagnosis this is not entirely unexpected. The employer ought to at least attempt to discuss this with him, and would be expected to make an effort to do so. If he refuses there is not a lot that they can do about it, but it hardly helps his circumstances because refusing to co-operate will count against him if they move to dismiss on capacity grounds at some point in the future. It would be better to say that he isn't fit enough to attend the workplace but they can do a home visit if they wish - that way you can be with him, because they cannot dictate terms about who is present in his own home.

Finally - they certainly can dismiss him, long term sick or not (and he isn't - three weeks isn't long term) before he is fit to return to work. Prolonged sickness absence may cause a dismissal; and there is absolutely no reason at all why, with reasonable adjustments if necessary, a disciplinary meeting on misconduct could not proceed if there appeared to be little prospect of him returning. Being off sick is not a protection against disciplinary action, it is simply opening up other avenues for dismissal.

If, given this, he decides to resign, nothing goes away. This employers can still mention the disciplinary warning in a reference, and they can mention that he resigned whilst under invetsigation for misconduct. So if this is the route that he wishes to go down then he will need to speak to them sooner or later to try to mitigate any damage done by his resigning - to determine what they would say in a reference and whether he can trade his resignation for a neutral reference at least.

But if he wishes to attempt a route of contructive dismissal - which is certainly not something I would recommend because of the burden of proof and the low chances of success - the he is going to have to prove his case every step of the way, and he is going to have to fully exhaust the employers internal grievance procedure demonstrating that the actions of the employer have been unreasonable. And that means that he is going to have to deal with the employer.

yvonne13_2

OP what makes you think they company may want to sue your DH?

ikati5

Losing your job while on long-term sickness
Employers can dismiss someone on long-term illness as a last resort only. Before making a decision they must consider:
if working part-time or flexible hours would help your return to work
if there will be a full recovery or if a return to the same work is not possible
if you could return if some assistance was given
if alternative, lighter or less stressful work is available, with re-training if necessary
If you feel you have been unfairly dismissed due to long-term sickness you can have your case heard with an Employment Tribunal.

How can you say he is not long term sick if he hasn't gone back, he could be off another week or another 6 months!

Emmzi

please cite your source ikati5, I do not think it is universally applicable.

Uncertain

ikati5 wrote: »

Losing your job while on long-term sickness
Employers can dismiss someone on long-term illness as a last resort only. Before making a decision they must consider:
if working part-time or flexible hours would help your return to work
if there will be a full recovery or if a return to the same work is not possible
if you could return if some assistance was given
if alternative, lighter or less stressful work is available, with re-training if necessary
If you feel you have been unfairly dismissed due to long-term sickness you can have your case heard with an Employment Tribunal.

No, not really!

The above would be more or less true if the OP's husband suffered from a disability (in the employment sense of the word) as the employer would be obliged to consider reasonable adjustments.

Unless this is the case (and there has been no suggestion of it) then the employer doesn't have to make any adjustments at all. Provided they follow proper process they can dismiss and it would be fair (in law).