desperate need in advice on redundancy/capability hearing

nicki1982

please can someone help me /give me advice, to cut a long story short, my husband is claiming loss of earnings from a accident he had 4 years ago as he lost his job because of his injuries, he managed to get another job, but he has now been dismissed on grounds of capability, his boss has asked him to agree to the termination, we cannot agree to it for the sake of the ongoing claim, his boss has said that if he doesnt agree than it will have to go to a capability hearing, but this means that he wont get redundancy pay nor a p45 until the hearing.... how can we claim benefits? also will has boss still have to pay him normal wage until the hearing? any advice would be much appreciated

mynameistallulah

Your post does not make much sense:

What relevance does the loss of earnings claim have?

Was he off sick from his most recent role, and if so for how long? If not, what are the grounds for dismissal? You say he has already been dismissed, but then that the boss is asking for him to agree to a termination, which is it?

nicki1982

when he was hit by a car, because he sustained serious injuries to his banks, he was made redundant from his last job which they based on a number of things one being time off, becuase he had 6 months off due to his injuries he was selected, we are suing the insurance company for compensation and because of job loss we are claiming loss of earnings, he got another job as a gardener but has struggled with the work and has had alot of time off sick, (due to his back) his boss came round and told him (whilst he was signed off from having a denervation) he would have to let him go under ill health/capability. he has written him a letter to explain all this and at the end of the letter asks him to sign it if he agrees with the termination of employment, if he doesnt agree it will have to go to capability hearing.... but we have to be careful as we are claiming loss of earnings because he now has lost 2 jobs because of the accident i dont want him to 'agree to the termination of employment' as the insurance company we are suing will tell him its his own fault he is out of work he shouldnt of agreed! its all very complicated!!!!

marybelle01

I still don't understand. Let it go to the hearing. He isn't due redundancy pay because it isn't redundancy, is it? And what does he need his P45 for?

getmore4less

Back problems, job as a gardner!

Did he get medical approval to do that job and advise the employer there was a back injury?

Don't resign just let then dismiss on capability.

They have to pay if he works, if sick it will be sick pay, if suspended should be pay.

nicki1982

well i didnt think its redundancy but he has offered redundancy pay..... he hasnt gone back to work since his boss told him that he cant have him back to work.... so the sick pay has stopped and he has no job and no money! yes he knew about my husbands accident and that he shattered a bone in his back, yet still took him on, 3 years down the line he decides that he is a liability and cannot keep him employed! this is what i dont get.... so he has no job, and we cant agree to the termination of employment because of the ongoing compensation claim, if it goes to a hearing how long is this going to take? and as we havent agreed to it does this mean he is still employed and that although his boss wont allow him to work, does he still have to pay him? he cant get his p45 to claim any benefits as clearly he still is employed?

marybelle01

I think you need to be realistic here. The employer took him on knowing about the injury, but your husband is a liability if he is having a lot of time off sick and cannot do the job that he was employed to do. He may not be doing it in quite the right way, but since he doesn't have to offer yto make him redundant, and can simply dismiss him on capability, then maybe the employer is trying to be fair and reasonable.

If your husband is still off sick and cannot work and is no longer entitled to sick pay, then the employer needs to give him an SSP1 so that he can make a claim for ESA. If he is not off sick the employer has to pay him if he is able to work and the employer refuses to allow him to work, until the capability hearing dismisses him.

Have you explained to the employer why you cannot agree to his suggestion?

nicki1982

yes, i think his boss is being reasonable too, and i feel bad that we might have to go to the hearing! but not alot i can do about it , he was signed off for 2 weeks and that ended on tuesday just gone, his boss wont have him at work due to insurance purposes (liability etc) so we are kind of in limbo! so he doesnt have an income, he potentially doesnt have a job but its not confirmed, he cant even claim job seekers etc......

marybelle01

nicki1982 wrote: »

yes, i think his boss is being reasonable too, and i feel bad that we might have to go to the hearing! but not alot i can do about it , he was signed off for 2 weeks and that ended on tuesday just gone, his boss wont have him at work due to insurance purposes (liability etc) so we are kind of in limbo! so he doesnt have an income, he potentially doesnt have a job but its not confirmed, he cant even claim job seekers etc......

If his sick note has finished the doctor says he is fit to return to work then he has been medically suspended by the employer, and the employer is legally obliged to pay his wages. http://www.direct.gov.uk/en/Employment/HealthAndSafetyAtWork/DG_10026595

nicki1982

ok, so he has signed the agreement which he dated yesterday (6th aug) we asked for the payment and was told we have to wait 2 weeks..... although he was dimsmissed on the 31st July..... is there a certain amount of time we have to wait or does it have to be paid on date of dismissal or date that he signed the agreement?

getmore4less

As soon as the money is paid probably worth a claim for unfair/lawfull dismissal they are on very dodgy ground giving redundancy.