Full time contract being slashed against will during long phased return to work

live4therush

Hi all

I'm am posting on behalf of my girlfriend here as she is not confident putting her details up for fear her employer will see this thread..

Ok so here is the story.. My girlfriend has been with her employer for around 18 months on a full time 37.5 hours contract with a big multi national corporation.

She unfortunately required lumbar spinal Surgary on 01.10.12 which required a significant recovery time before she would be ready for work again. So she had approx 2.5 months off work to recover and was keen to get back to work on a phased return. Now to date all was well, she had 3 months osp full pay, and her employer also allowed 4 weeks of full pay during the time needed to complete a phased return to work so she was not suffering financially. After reaching the 4 week mark, it was clear that she was not ready to go back to work for more than 12 hours a week, in fact that is what the doctors fit note stated that initially, but each shift of just 2 hours sat down was agonising and clearly impeding her recovery. After a phone call from her line manager informing her that her full pay had run out, she was faced with the prospect of only doing a couple of hours of work in agony for little financial reward as her line manager told her that a longer phased return to would only be paid pro-rata for the hours worked, and her manager also made the suggestion of dropping to a part time contract, and left her to consider it.

she went to the doctor once again and was signed off sick for 2 months as work was too painful. At this stage.
She phoned her line manager and informed her of the sick note, and it would be up to 2 months before she may be ready to return to work although the option to return earlier could be considered if her recovery speeds up. Following this call, my girlfriend phoned her employee relations team to check how much full sick pay was remaining which turns out to be just 6 days, and then she would drop on to SSP. With us both just buying a house together, we could only just pay our mortgage & outgoings with nothing spare for a rainy day.

So finally, I get to the real grievance of this whole situation, and I hoped I have not gone on too long but all the background is relevant of course. Her line manager phoned earlier today to inform her that her contract has been successfully changed to part time, 12 hours per week. She never agreed to this amendment which has had the additional impact of removing the possibility of her claiming SSP. To say she was angry and upset was an understatement and has left us worrying about whether she will have any income at all whilst she is recovering meaning either we suffer financially or she forces herself back to work to pay the bills.

So in relation to the contract change, is it possible for them to do that without her permission? Or even legal. What course of action can we take here? Her back is bad, it doesn't appear that the Surgary has worked and she is going for another MRI tomorrow to help see what can be done.

She also has made a visit to an occupational health consultant who worked on behalf of her company stating that her type of Surgary may require 6-12 months to fully recover from and that a protracted phased return to work period may be required.

Thank you for looking, any help is hugely appreciated on this.

Jimmy

agrinnall

They can offer a change of contract. She is then free to either accept or reject the change. If she rejects it and they insist on the change remaining then I believe they would have to make her redundant, although as she hasn't been there for 2 years she might not get anything other than her notice and any holiday pay due. Or she could try to negotiate a different change to the contract.

However, it's possible that they think they're not going to get any real work out of her for quite a long time so they are engineering a way to make her leave. To be honest they could probably dismiss for capability anyway with the length of time she's been off and may be off in the future.

I wish her good luck, it's not what she wants in her circumstances, but I fear there may not be a happy ending.

Takeaway_Addict

Get proper advice from a solicitor but I would be straight away writing a letter to HR and to the manager saying you don't accept the contract change and then proceed from there.

There is also the real risk that they may start capability procedures against her but again you need to be getting proper advice

live4therush

Would that not be in breach of disability or equality acts? She has plenty of supporting documentation to show that she is indeed recovering from a procedure, and an occupational health professional has put in his official report that she is covered by elements of the disability act. Would she be able to take them to tribunal for this change in contract? Especially if they are indeed clearly trying to engineer a way of making her leave..

t0rt0ise

Personally I would doubt that surgery and recovery counts as a disability under the Act. Also nobody knows what is covered by the Act until they go to tribunal so everyone's opinion is simply that, just opinion. So get some legal advice and go from there.

hcb42

she is probably (although get some legal advice) better to reject the change of hours and simply stay on SSP for now.

her time off is not excessively long for now, but equally the employer could eventually dismiss on capability grounds. But they need to follow fair process (although in reality, her short length of service does mean there isnt a lot of financial protection if they pursue this

Pricivius

live4therush wrote: »

Would that not be in breach of disability or equality acts? She has plenty of supporting documentation to show that she is indeed recovering from a procedure, and an occupational health professional has put in his official report that she is covered by elements of the disability act. Would she be able to take them to tribunal for this change in contract? Especially if they are indeed clearly trying to engineer a way of making her leave..

Take a look at the equality act so you can get an idea of what the employer needs to do. If she is disabled, then the employer must take certain steps to try and help her, but this is not exhaustive and the needs of the business should be taken into account. She is not immune due to disability.

So far, it seems the employer has been generous with sick pay which is presumably discretionary, has facilitated a phased return to work on full pay which failed and is now being asked to consider another one at some point in the future. There is only so much they need to do to show they have considered reasonable adjustments. Unfortunately, only a tribunal can decide what enough is. I would calm your jets on this score and try to clarify what's going on in an effort to save the job rather than sue.

As for the contract change out of the blue, this is odd and a little surprising coming from a big company. It sounds like a fait accompli - are you sure that is what they have done? If so, I would send an email/letter refusing to accept the new contract and asking for a meeting to discuss what is happening - depending on your approach, this could be a grievance or an informal discussion.

live4therush

Pricivius wrote: »

Take a look at the equality act so you can get an idea of what the employer needs to do. If she is disabled, then the employer must take certain steps to try and help her, but this is not exhaustive and the needs of the business should be taken into account. She is not immune due to disability.

So far, it seems the employer has been generous with sick pay which is presumably discretionary, has facilitated a phased return to work on full pay which failed and is now being asked to consider another one at some point in the future. There is only so much they need to do to show they have considered reasonable adjustments. Unfortunately, only a tribunal can decide what enough is. I would calm your jets on this score and try to clarify what's going on in an effort to save the job rather than sue.

As for the contract change out of the blue, this is odd and a little surprising coming from a big company. It sounds like a fait accompli - are you sure that is what they have done? If so, I would send an email/letter refusing to accept the new contract and asking for a meeting to discuss what is happening - depending on your approach, this could be a grievance or an informal discussion.

I am absolutely sure they have amended her contract yeah, we verified it by logging on to her intranet from home and looking at her employee record. The real bones of this issue IS the sudden drop in contract without her permission. In my long experience, this can't be done without following a capability, disciplinary or redundancy process but in this case, they have simply done just that.

So far the consensus would be to write and reject the contract change, I believe that the only way could do it in this case is if they could show that my girlfriend wanted the drop in contract, does that sound right?

I know that time is probably a factor here so trying to get the advice now. She is also gonna ring ACAS this morning.

Any recommendation who else to speak to?

Jimmy

Sambucus_Nigra

How did they decide on 12 hours? Are you sure she didn't ever say 'I can only do 12 hours a week' ever?

heretolearn_2

"it was clear that she was not ready to go back to work for more than 12 hours a week, in fact that is what the doctors fit note stated that initially"

this is where they got 12 hours from?

Uncertain

agrinnall wrote: »

They can offer a change of contract. She is then free to either accept or reject the change. If she rejects it and they insist on the change remaining then I believe they would have to make her redundant, although as she hasn't been there for 2 years she might not get anything other than her notice and any holiday pay due. Or she could try to negotiate a different change to the contract.

No, this is not correct.

Redundancy doesn't come into this. Strictly speaking it is a post, not a person that becomes redundant.

Ultimately if and employer and an employee are unable to reach agreement on a change in contract an employer can impose it. If the employee continues to work under the new contract (or remains on sick leave come to that) they would normally be deemed to have accepted it.

The correct course of action is to write formally rejecting the change (or part of it) and make it clear that you are working under protest. Ultimately though if the employer insists the only remaining option is to resign and claim unfair dismissal. Note, it is not constructive dismissal under such circumstances despite resigning. A tribunal would then decide if the changes were unreasonable to the point that you were effectively dismissed.

OP, you need to get proper legal advice. Beware of the advice from the initial ACAS call center. Whilst ACAS are good at higher levels the first step is just a call center staffed by people with very limited training largely reading from a script. There are numerous examples of them giving wrong information. It is no substitute for legal advice.

The CAB may be able to refer you to a lawyer. However their first offerings will be advice from a volunteer with only basic training.