zero sick pay and Employment tribunal help

pmlindyloo

I am wondering if your employer is refusing to make reasonable adjustments then you are actually unfit for work and able to claim ESA.

What I suggest you do is visit your doctor and explain the situation as regards claiming ESA.

I believe that your current fit note also serves as a not fit for work in your current job but am unsure whether ESA would accept this fit note which says 'with reasonable adjustments/amended/whatever.'

Perhaps you doctor could amend the fit note to say that you are not fit for work in current job.

ESA can be paid to people who are on 'sick leave' so this should not, hopefully' be a problem.

Worth a try.

Undervalued

witsend10 wrote: »

Have tried to sign up for the redundancy forum but haven't been able to activate as yet so can't post on there.

I strongly suggest you keep trying. I know they had some technical issues leading to the forum being down for over a week. However, SarEl (the retired barrister I mentioned) did post a reply on there last night so it is at least partially functioning. Be warned, she calls a spade a spade which isn't to everybody's liking but her advice is superb and would be ideal for your situation.

witsend10 wrote: »

If anyone on this forum has any advice they can offer then I would be very grateful as I am near breaking point financially. I have lost just about everything and our home is next.
I cannot resign because then I have made myself deliberately jobless, if I work elsewhere part time to feed my family, then I can be sacked and again have caused myself to be jobless but I cannot claim benefits as I am technically still in work.
My family are reliant on the local food bank, I have applied to and been offered interviews at other jobs, only for the reference to let me down, (my employer wont supply one) so my family and I are stuck in this terrible situation.
Any advice very gladly received.

On the face of it (based only on what you have posted here) your employer is in the wrong by letting the situation drift. As I understand it if.....

1) You are disabled (for employment law purposes) and

2) A medical professional has suggested "reasonable adjustments" to allow you to return to work

Then your employer should make those adjustments as soon as reasonably possible. It would be perfectly reasonable for them to want a second medical opinion (at their expense) and you would be best advised to co-operate with that.

If they can't or won't then, arguably, you are on a medical suspension and are entitled to be paid.

Obviously they could argue that the adjustments are not reasonable (e.g.too expensive or physically impossible) if this is so then they could fairly dismiss you on capability (i.e. medical) grounds. You would be entitled to paid notice plus accrued holiday pay but that is all.

If they did this and you took it to a tribunal it would be for the tribunal to decide if the suggested adjustment were reasonable or not.

If it is a grey area as to who would win (and these things often are - there are two side to every story) then it may be possible to agree a settlement agreement (compromise agreement) with them. Basically you sign away your right to sue them in exchange (usually) for some money and an agreed reference. You have to receive legal advice for this to be valid and generally the firm pays for this.

Without a settlement / compromise agreement you can't force the firm to provide a reference if they choose not to.

A retired solicitor (XXXLazyDaisy) used to post regularly here (and sometimes still does). She is also superb so hopefully she may see this.

witsend10

Thanks all for the replies, I really appreciate your time and trouble.
I will keep trying the forum, I have been reading some posts which are similar so have been quite informative anyway.
My case is quite complicated so I think that I may have to put the full details on there to get a full answer.
thanks again for all your advice.
BTW how many oc health appointments can they make me attend? I only had the last one a month ago and they are now saying that i need another from the physician. This is the 6th in 8 months!
To answer the questions, yes I have a disability that is covered by the equality act and oc health informed them of this 8 months ago, the requested reasonable adjustments have been the same from 3 different medical professionals and they would cost my employer nothing to implement.
thanks again.

Undervalued

witsend10 wrote: »

BTW how many oc health appointments can they make me attend? I only had the last one a month ago and they are now saying that i need another from the physician. This is the 6th in 8 months!
To answer the questions, yes I have a disability that is covered by the equality act and oc health informed them of this 8 months ago, the requested reasonable adjustments have been the same from 3 different medical professionals and they would cost my employer nothing to implement.
thanks again.

Well is sounds to me as if they are being deliberately obstructive! A second opinion is fair enough but 6 in 8 months is crazy!

Do you have any access to legal advice? (Union or maybe via your house insurance)? Failing that can the CAB provide access to a solicitor (i.e not a well meaning unqualified volunteer)?

One sharp letter from a lawyer might get some action.

witsend10

I know they are being deliberately obstructive!
I am awaiting my house insurance to review the case to decide whether they will fund it or not, (probs not the best choice, but I cannot afford anything else as my savings are all but gone now) but have been waiting for ages for them to decide.
I found my union ineffective, they just sat at meetings and didn't challenge anything, that is if I could get them to answer or reply to calls/ emails etc in the first place. (even the remploy advisor said they seemed a bit useless)
The union threatened an ET1 a few times but then never followed it through and now have abandoned me because I told them I had taken some advice from my legal insurance helpline. (I realise now that I shouldn't have mentioned it to them, but I was trying to get them to do something. Amazingly they were very prompt replying to me to tell me that!)
Thanks again for your advice

pmlindyloo

In view of your current financial circumstances I am wondering whether you might be better off resigning and then claiming constructive dismissal. At least this way you could either claim JSA (you would have good reason) or take up the job offers.

What result do you want from this?

Do you want to go back to your old employer?

Undervalued

pmlindyloo wrote: »

In view of your current financial circumstances I am wondering whether you might be better off resigning and then claiming constructive dismissal. At least this way you could either claim JSA (you would have good reason) or take up the job offers.

Only do this on good legal advice! Constructive dismissal claims are incredibly hard to win (only about 3% succeed). That is not to say yours won't be one of them but this needs expert advice.

Disability discrimination is one of the few areas where there can sometimes be significant ET payouts. Giving this up for a few weeks JSA could be expensive overall. Also, if you resign you would have to convince the DWP that it was for good medical reasons. You could most likely do so but it is another hurdle to climb.

pmlindyloo

Undervalued wrote: »

Only do this on good legal advice! Constructive dismissal claims are incredibly hard to win (only about 3% succeed). That is not to say yours won't be one of them but this needs expert advice.

Disability discrimination is one of the few areas where there can sometimes be significant ET payouts. Giving this up for a few weeks JSA could be expensive overall. Also, if you resign you would have to convince the DWP that it was for good medical reasons. You could most likely do so but it is another hurdle to climb.

I absolutely agree with you.

OP seems to be getting very little help from the 'professionals'. I hope he has more luck with getting legal support from his home insurance policy.

I would suggest CAB but if the OP is a member of a union then they will say that he must use this avenue.

I am dismayed that the union isn't being more helpful. Can the OP complain to someone higher in the union? Why pay your union fees when no one is prepared to help you?

witsend10

Thanks again for your helpful input, it is so very much appreciated!
I have wondered about the whole constructive dismissal thing and if I get the insurance go ahead I will ask them.
The dwp have told me that if I resign I will not get benefits but since I don't get them now I won't be any worse off and after a period of time I will be able to get them, so it is a road that I might be forced to take and my employer well knows this, as I have already been informed by a colleague that they plan to 'starve me out'. (of course they don't want to get involved etc. so I don't have any evidence and it would only be hearsay at best anyway, apparently it came from a member of management who blabs about everything and who took great delight in sharing this with one of her cronies)
One thing that I wanted to know is, if I took a job that has hours outside of my normal working hours, could I be dismissed for it or would that be acceptable? I cant find anything in my contact that forbids it and many people have 2 jobs, but since they are classing my leave as sick leave I am not sure if I can do that.
thanks again for all replies, it is certainly giving me food for thought.

pmlindyloo

witsend10 wrote: »

Thanks again for your helpful input, it is so very much appreciated!
I have wondered about the whole constructive dismissal thing and if I get the insurance go ahead I will ask them.
The dwp have told me that if I resign I will not get benefits but since I don't get them now I won't be any worse off and after a period of time I will be able to get them, so it is a road that I might be forced to take and my employer well knows this, as I have already been informed by a colleague that they plan to 'starve me out'. (of course they don't want to get involved etc. so I don't have any evidence and it would only be hearsay at best anyway, apparently it came from a member of management who blabs about everything and who took great delight in sharing this with one of her cronies)
One thing that I wanted to know is, if I took a job that has hours outside of my normal working hours, could I be dismissed for it or would that be acceptable? I cant find anything in my contact that forbids it and many people have 2 jobs, but since they are classing my leave as sick leave I am not sure if I can do that.
thanks again for all replies, it is certainly giving me food for thought.

Interesting question.

I have found this which is similar to your situation:

http://www.gotelee.co.uk/about-us/news/employee-unfairly-dismissed-for-working-in-second-job-while-on-sick-leave

My gut feeling is that this could cause even more problems since your employer sounds very difficult!

Personally I would be trying the ESA route. If you are entitled to income based ESA (have you a partner that works/savings over £16000?) then you might also be entitled to Support for Mortgage Interest (usually after 13 weeks)