Off sick from work, employer trying to fire me for misconduct

your_evil_twin

For the past couple of years I have worked for a call centre company. I have been off-sick since February, during which time I have just received statutory sick pay as my employer doesn't have any kind of additional sick pay. I am not a member of a union.

In January I got laryngitis and lost my voice. I returned to work a few days later, but still had a bit of a sore throat. For the rest of January I suffered a sore throat which became worse by the end of each week due to my job talking on the phone. I would recover a bit over the weekend, but once back to work it would get bad again.

In February I went to the doctor and was told to take time off work as I was not going to recover as long as I was talking every day, and I was signed off sick. Over the next few weeks my throat somewhat recovered, but talking for more than half an hour would cause my throat to become sore. I could have brief casual conversations with people but returning to a full-time call centre job was out of the question.

It took TWO MONTHS before I finally got to see an ENT (ear nose throat specialist); they had feared I might have "singer's throat"/"teacher's throat" and have nodes/polyps on my vocal cords, but they found that was not the case. They referred me to a speech therapist. After waiting another month I finally got to see the speech therapist and got a proper diagnosis: "moderate muscle tension dysophonia".

The speech therapist explained that in order to talk and do my job while suffering from laryngitis I had strained my voice muscles and they became used to having to work hard to produce a sound. So even once I recovered from the viral infection, talking for a prolonged amount of time causes me to get a sore throat as if I had been shouting a lot. I now do special vocal exercises 5 times a day and have regular speech therapy and neck massages to loosen the muscles, and this has been improving my condition, but I am not yet completely recovered.

A couple of weeks ago I received an email asking me to attend an investigative meeting to consider an allegation of misconduct. The reason for this is that I have a youtube channel in which I do game reviews; I produce around two videos a month, each about 15 to 20 minutes long. I made no secret of this, they are public on my facebook and my twitter and I have work colleagues that subscribe to my videos. My employer said that since I do not appear to have any difficulties with my voice during those videos that I have been lying about being "unfit for work". This is despite the fact that they have sick notes from my doctor, a special report from my doctor (that my employer had to pay £25 for), and a report from my speech therapist.

The other piece of evidence they used against me was photographs of me dressed up as a Ghostbuster and taking part in the Sci-Fi London Costume Parade, a two hour event on a Sunday. (I guess they think that if someone is well enough to leave the house then they are fit to work, even thought the problem is with my voice, not my ability to walk around or wear a costume.)

When getting my latest sick note from my doctor I told her about the impending hearing, and she thought that it was "silly", as using my voice in occasional 20 minute youtube videos and dressing up to go to a costume parade obviously did not require me to use my voice in any way similar to working in a call centre job. I asked if perhaps she could do some kind of note or letter to that effect, but she said that she didn't feel it was her place and that my employer would not appreciate it as it was an internal matter; I simply had to explain things and hope that they had common sense.

On Wednesday I went to the investigative meeting and I explained that both my doctor and my speech therapist were fully aware of the fact that I made these occasional short youtube videos; in charting my progress with them I would often discuss how "I tried to do one of my videos last week but my voice was too sore" or "my voice sounded strange; I tried again a couple of days ago and I was able to do it OK," that sort of thing. My doctor and therapist did not see any problem in me doing these youtube videos, as doing a 20 minute recording every couple of weeks is obviously not in the same league as a full-time call centre job where I would be talking for 7 hours a day, 5 days a week. I also pointed out at the sci-fi event I attended was only 2 hours long, of which an hour was spent doing photos and then an hour was spent marching across Westminster Bridge. I did not using my voice for anything other than some mild casual conversation. They countered "we have no way of knowing that, you could have been making public presentations and speeches for all we know."

My employers then argued that I should not have been signed off "unfit for work", instead the sick notes should have said that I would need to work shorter hours, and that I should have asked for a staggered/phased return to work, where I work half-shifts, or full-shifts for only a few days a week.

I explained that a staggered/phased return to work never occurred to me or my doctor because I can only talk comfortably for up to half an hour, and talking for an hour or more would be quite painful and could injure me and slow my recovery. This was supported by the reports from my doctor and speech therapist. I said that I did not think that an employer would be interested in having someone come in for just 30 minutes a day.

My employer then said that if my voice was truly as badly affected as claimed by myself and my doctor and speech therapist, then I should be completely resting my voice in order to have as speedy a recover as possible, and that by recording these short videos every couple of weeks I had recklessly harmed my voice and slowed my recovery, and this was also misconduct.

I explained that this opinion was not shared by my doctor or my speech therapist, they did not feel that my videos harmed me in any way and if they did they would have recommended that I stop doing them.

I said that although I did not have note or letter to this effect, if my employer wanted to contact my doctor again (they did previously to get an official medical report from her) I'm sure she would be able to confirm this. I pointed out that I was required to do vocal exercises 5 times a day, this in itself uses my voice; I am supposed to avoid straining my voice, but I'm not required to become a monk and take a vow of silence.

I also said that I would be happy to do a phased/staggered return to work if that meant working for less than an hour a day. I also mentioned that my throat was now sore from talking in this 45 minute investigative meeting.

I had hoped that my explanations would be satisfactory and they would see common sense, but today I received an email saying that they were taking this to the next step and I am required to attend a disciplinary hearing on Wednseday 2nd July. While the investigative meeting was with my direct manager/supervisor, this disciplinary hearing will be with the account manager, someone higher up the chain.

What can I do? I have already explained everything to the full of my abilities in the investigative meeting. I can't think of anything else I can say in my defence. It seems that my employer has simply decided that they want to get rid of me.

Can an employer disregard doctor's sick notes that say I'm unfit for work, as well as an in-depth doctor's report and a report from a speech therapist, and decide that I've actually been fit for work and been pulling a sickie for 6 months?

DomRavioli

Hi OP,

It may be the case that you are being disciplined/sacked on medical grounds - this is possible. Unless you can get someone to write a letter with the specific purpose of proving your inability to talk for long periods without rest, then you may find yourself in trouble.

Has your employer paid you sick pay? If so, they haven't disregarded your fit notes (thats what sick notes are called nowadays).

If you feel you haven't provided enough information (from the sounds of it, your employer doesn't get what is wrong with you, or understand how and why it is keeping you from work) then you need to get it ASAP.

Ronaldo_Mconaldo

What is this crap? Talking on the phone to someone ha smeant that you are unable tomtalk for 6 months? What do you do, sing opera down the phone for hours at a time?

Annisele

I don't think your employer should have been arguing with what your sick note said - presumably they're not medically qualified, and even if they are they haven't examined you.

However, ultimately your employer may be able to dismiss you on capability grounds. If you're a call centre worker and you can't talk, then you can't do your job - and your employer doesn't have to keep you on indefinitely, regardless of whether they believe you or not.

After six months, I think most employers would be starting to think about disciplinary /capability. Your employer seems to have gone about it in a most unpleasant way, but hopefully when you get "higher up the chain" as you put it, your employer will behave a bit better.

Have you been given a long term prognosis? I know nothing about the condition you've described, and if I was the employer your prognosis would make a difference to me. If you were expected to make a full recovery in a few months, then I might hold your job open for you. If you weren't expected to ever be able to work in a call centre ever again, then I'd be recruiting your replacement (if I hadn't already) - but I'd also be thinking about whether you could work elsewhere in my business.

What do you want your employer to do? If it's just "wait indefinitely to see if I get better", then I don't think that's realistic. If it's "transfer me to that job over there where I won't have to talk", then that may be a way forward.

Funky_Bold_Ribena

What was your start date in this job?

You have to realise that if you don't get dismissed for misconduct, they might well release you on medical grounds.

agrinnall

You clearly can't do the job for medical reasons, so a capability dismissal would have been the sensible option for your employer to take, going for GM is just making a simple situation complicated.

To be honest I'm not sure why you are prolonging this when you're only getting SSP, would you not be better looking for a job that doesn't require you to constantly talk?

getmore4less

from what you have said


You were not unfit to work.


You were unfit to talk for extended periods.


These are two very different things.


By being signed off as unfit to work they have not had the opportunity to look for reasonable adjustments and other work mixed with some calls.

FBaby

Did you not query at any time about the possibility of doing some other work? I understand that working in a call centre mainly involves talking to people on the phone, but surely it was better for both the company and you to see about you doing some other type of work, admin, filing, cleaning, anything so you could keep on working?

I can understand their scepticism, especially if at no time, you have suggested that you could take on some other duties. The fact that your doctor is not prepared to back you up won't help either. It's one thing to sign a note as requested, it's another to openly say that the patient is incapable of work.

Transformers

I'm surprised your GP has said you are entirely unable to work. The certificates are now called 'fit notes' for a reason. They should say what you can do so that your employer limits the duties to support your condition.

If you are well enough to go to conventions and make and post videos then you are well enough to do some limited duties at work. You should have been working with your employer to see if there was an alternative role available.

What have you been doing with yourself for the last four months - physio won't occupy that much time.

Takeaway_Addict

your_evil_twin wrote: »

For the past couple of years I have worked for a call centre company. I have been off-sick since February, during which time I have just received statutory sick pay as my employer doesn't have any kind of additional sick pay. I am not a member of a union.

In January I got laryngitis and lost my voice. I returned to work a few days later, but still had a bit of a sore throat. For the rest of January I suffered a sore throat which became worse by the end of each week due to my job talking on the phone. I would recover a bit over the weekend, but once back to work it would get bad again.

In February I went to the doctor and was told to take time off work as I was not going to recover as long as I was talking every day, and I was signed off sick. Over the next few weeks my throat somewhat recovered, but talking for more than half an hour would cause my throat to become sore. I could have brief casual conversations with people but returning to a full-time call centre job was out of the question.

It took TWO MONTHS before I finally got to see an ENT (ear nose throat specialist); they had feared I might have "singer's throat"/"teacher's throat" and have nodes/polyps on my vocal cords, but they found that was not the case. They referred me to a speech therapist. After waiting another month I finally got to see the speech therapist and got a proper diagnosis: "moderate muscle tension dysophonia".

The speech therapist explained that in order to talk and do my job while suffering from laryngitis I had strained my voice muscles and they became used to having to work hard to produce a sound. So even once I recovered from the viral infection, talking for a prolonged amount of time causes me to get a sore throat as if I had been shouting a lot. I now do special vocal exercises 5 times a day and have regular speech therapy and neck massages to loosen the muscles, and this has been improving my condition, but I am not yet completely recovered.

A couple of weeks ago I received an email asking me to attend an investigative meeting to consider an allegation of misconduct. The reason for this is that I have a youtube channel in which I do game reviews; I produce around two videos a month, each about 15 to 20 minutes long. I made no secret of this, they are public on my facebook and my twitter and I have work colleagues that subscribe to my videos. My employer said that since I do not appear to have any difficulties with my voice during those videos that I have been lying about being "unfit for work". This is despite the fact that they have sick notes from my doctor, a special report from my doctor (that my employer had to pay £25 for), and a report from my speech therapist.

The other piece of evidence they used against me was photographs of me dressed up as a Ghostbuster and taking part in the Sci-Fi London Costume Parade, a two hour event on a Sunday. (I guess they think that if someone is well enough to leave the house then they are fit to work, even thought the problem is with my voice, not my ability to walk around or wear a costume.)

When getting my latest sick note from my doctor I told her about the impending hearing, and she thought that it was "silly", as using my voice in occasional 20 minute youtube videos and dressing up to go to a costume parade obviously did not require me to use my voice in any way similar to working in a call centre job. I asked if perhaps she could do some kind of note or letter to that effect, but she said that she didn't feel it was her place and that my employer would not appreciate it as it was an internal matter; I simply had to explain things and hope that they had common sense.

On Wednesday I went to the investigative meeting and I explained that both my doctor and my speech therapist were fully aware of the fact that I made these occasional short youtube videos; in charting my progress with them I would often discuss how "I tried to do one of my videos last week but my voice was too sore" or "my voice sounded strange; I tried again a couple of days ago and I was able to do it OK," that sort of thing. My doctor and therapist did not see any problem in me doing these youtube videos, as doing a 20 minute recording every couple of weeks is obviously not in the same league as a full-time call centre job where I would be talking for 7 hours a day, 5 days a week. I also pointed out at the sci-fi event I attended was only 2 hours long, of which an hour was spent doing photos and then an hour was spent marching across Westminster Bridge. I did not using my voice for anything other than some mild casual conversation. They countered "we have no way of knowing that, you could have been making public presentations and speeches for all we know."

My employers then argued that I should not have been signed off "unfit for work", instead the sick notes should have said that I would need to work shorter hours, and that I should have asked for a staggered/phased return to work, where I work half-shifts, or full-shifts for only a few days a week.

I explained that a staggered/phased return to work never occurred to me or my doctor because I can only talk comfortably for up to half an hour, and talking for an hour or more would be quite painful and could injure me and slow my recovery. This was supported by the reports from my doctor and speech therapist. I said that I did not think that an employer would be interested in having someone come in for just 30 minutes a day.

My employer then said that if my voice was truly as badly affected as claimed by myself and my doctor and speech therapist, then I should be completely resting my voice in order to have as speedy a recover as possible, and that by recording these short videos every couple of weeks I had recklessly harmed my voice and slowed my recovery, and this was also misconduct.

I explained that this opinion was not shared by my doctor or my speech therapist, they did not feel that my videos harmed me in any way and if they did they would have recommended that I stop doing them.

I said that although I did not have note or letter to this effect, if my employer wanted to contact my doctor again (they did previously to get an official medical report from her) I'm sure she would be able to confirm this. I pointed out that I was required to do vocal exercises 5 times a day, this in itself uses my voice; I am supposed to avoid straining my voice, but I'm not required to become a monk and take a vow of silence.

I also said that I would be happy to do a phased/staggered return to work if that meant working for less than an hour a day. I also mentioned that my throat was now sore from talking in this 45 minute investigative meeting.

I had hoped that my explanations would be satisfactory and they would see common sense, but today I received an email saying that they were taking this to the next step and I am required to attend a disciplinary hearing on Wednseday 2nd July. While the investigative meeting was with my direct manager/supervisor, this disciplinary hearing will be with the account manager, someone higher up the chain.

What can I do? I have already explained everything to the full of my abilities in the investigative meeting. I can't think of anything else I can say in my defence. It seems that my employer has simply decided that they want to get rid of me.

Can an employer disregard doctor's sick notes that say I'm unfit for work, as well as an in-depth doctor's report and a report from a speech therapist, and decide that I've actually been fit for work and been pulling a sickie for 6 months?

The question of when you started working for them is important, if it is less than 2 years ago they can dismiss you fairly easily with little recourse.

If it's longer I would expect them to start capability proceedings against you even if you win your case.

Really surprised you've not made the effort to ask for alternate work and I'm not surprised the employer is annoyed with you.

your_evil_twin

I started working for them end of April/start of May 2012, so I've been employed by them for more than two years now.

On several occasions I told them I would love to do some other role at the company that didn't involve me using my voice too much. I have office/admin experience and great IT skills.

My GP signed me off as unfit because my normal work consists entirely of talking on the phone, and nothing but talking on the phone. But they were fully aware that the problem was with my voice and nothing else, and that I can do other other roles at the company.

One time they sent me an email saying that they had a temporary data entry job which wouldn't require me to use my voice much. I replied the same day and said I was very interested in doing that... and then didn't hear anything until an email the following week, where they apologised and said they gave it someone else and the position was now over, it had only been a one-week thing.

agrinnall wrote: »

You clearly can't do the job for medical reasons, so a capability dismissal would have been the sensible option for your employer to take, going for GM is just making a simple situation complicated.

To be honest I'm not sure why you are prolonging this when you're only getting SSP, would you not be better looking for a job that doesn't require you to constantly talk?

I have been looking for other work, I've been doing lots of job applications. Early during my sickness my voice was far worse, any talking at all was difficult, and so I was mainly focusing on admin/data entry jobs that didn't have much of a customer service element; in the past couple of months my voice has improved and so I can now talk for brief periods so I have widened the scope of the sorts of jobs that I am applying for.

At the moment I receive statutory sick pay, which is a measly amount of money but is better than nothing. If I were to quit my job, I wouldn't be able to claim JSA. (For up to 26 weeks.) Similarly, if they fire me for misconduct, I can't claim JSA.

Of course they could have dismissed me due to long-term sickness. (You call it a 'capability dismissal', I've also heard it called 'frustration of contract', where a change to an employee's circumstances means they can no longer do a job.)

If they did that it wouldn't be too big a problem - I'd still be able to claim JSA, which is slightly less than statutory sick pay. I'm searching for other jobs anyway. Instead they are going the misconduct route, which would prevent me claiming JSA and would also show up on a reference and ruin my future employment prospects.