Reduced Sick Pay - Off sick due to harassment

stevejbrecon

Hi all,

My wife is currently off sick due to stress which has exacerbated her pre-existing epilepsy.

The cause of the stress has been harassment and bullying by her line manager.

Her treating consultant has confirmed in writing that stress from work has been the cause of her epilepsy getting worse.

She has been on half pay for a couple of months now and has today been told that she will stop being paid entirely from tomorrow.

She has been dealing with the claim of harassment via her union rep who has now essentially washed his hands of the pay issue and said that she should have been "medically suspended" if she wanted to carry on receiving full pay.

Is any of the above correct? My opinion is that if she was simply off work sick then they have every right to reduce her pay in line with her contract terms. However surely if they are the cause of her being off sick she shouldn't have her pay reduced?

Any help would be much appreciated.

Thanks in advance

k3lvc

I've been in a similar position with work related anxiety and depression and on a personal level have to say the removal of pay was a defining moment. It tends to focus the mind on what's important and suddenly got all the issues on the table and (with the support of a good Occupational Health Department) got me back to work as actually dealing with no income was worse than dealing with the issues at work.


In my case I now see it was a bit of a game from HR - I was actually entitled to full payment for 1 year whereas they tried to pull it after 6 months


I had no union involvement and TBH I'd be looking to either escalate the situation and explain you want to return to work but need to resolve the issues or bite the bullet and resign

stevejbrecon

Hi,

Thanks for the reply.

I appreciate what you are saying and we have certainly thought about simply biting the bullet and her going back to work.

However, the occupational health doctor from the council (she works for a school) has said that she is not fit to go back to work.

Whilst I 100% appreciate the debilitating nature of anxiety and depression her epilepsy means that she not only poses a serious health risk to herself but also to the children she is working with.

The school have said that if occupational health have said she cannot return that she is not allowed to.

So we are now in a situation where she cannot return to work even if she wanted to, she is forced to sit at home on zero pay until the occupational health doctor deems her fit for work.!

k3lvc

In which case the OH/HR dept should be talking to engineer a return to work.


At this stage I'd be looking at legal advice but as a first step writing to employer copying OH Dept stating clearly her desire to return to work and asking OH Dept to make suggestions on how this may happen


Education not my area of expertise but is she employed by establishment or LEA ? Are there other opportunities via LEA ?


How long has she worked there ?


Is the OH/Medical diagnosis accepted by employer ?

stevejbrecon

Hi,

She is employed by the local council so I may ask her to raise the possibility of a sideways move somewhere else.

The issue at the moment is that her epilepsy has deteriorated to a stage where she ifls not fit for work, in a school or elsewhere. Her treating consultant and OH department have given her a timeframe of a couple of months for symptoms to resolve and for her to be able to go back to work.

We can't afford for her to be entirely without pay for 2 months and I don't see why we should when she is off work due to actions of another staff member.

Thanks for your reply, I'm going to seek legal advice as well but finding someone to give initial advice for free is the next challenge.

tomtontom

Do the school/ LEA agree that there is a bullying issue, has your wife submitted a grievance to this effect?

stevejbrecon

Hi,

They are investigating this at the moment which is being handled through unison and a mediation meeting has been scheduled for after the Easter holidays.

Regardless however, OH have said that it will take longer than this for her symptoms to reside to a point where she is fit for work. Even if the grievance is resolved and mediation is successful she will still be off sick without pay until OH deem her fit for work again.

sangie595

In the first place, you need to clarify her employer for us. It is rare now to see school staff employed by the Council, although schools often buy into council services such as occupational health.

Secondly, the union are correct. The sick pay entitlement is based on service, and covers any sickness, whatever the cause. Because the employer is allegedly responsible for the sickness, that does not mean that there is more entitlement. And you are not going to like this statement, but please bear with me, as I am telling you this as the world ( and the law) see it- the consultant is in no position to say that work had caused her sickness. Not even OH can say that. Because both are operating on the basis of her version of events, and there are two versions. Just because she had told them she is being bullied does not qualify them to say she is. It qualifies them to say that is her opinion.

To be honest I see no possibility of medical suspension. It is not the employers opinion that she is too sick to work. It is everyone's opinion, including her own doctors, that she places herself and others at risk if she works. That is sickness. Medical suspension really applies to cases where the employer disputes a doctor's opinion, or where there is no doctor's opinion but the employer has health concerns about an employee. So unless her own doctors are saying she is fit to return, I doubt you will get very far here.

What is happening about the grievance? Because that is really the key issue. These sorts of grievances can drag on, and the employer had every advantage in letting them do so once someone runs out of sick pay. In the end, most people will simply give up. That is probably what they are hoping for.

sangie595

stevejbrecon wrote: »

Hi,

They are investigating this at the moment which is being handled through unison and a mediation meeting has been scheduled for after the Easter holidays.

Regardless however, OH have said that it will take longer than this for her symptoms to reside to a point where she is fit for work. Even if the grievance is resolved and mediation is successful she will still be off sick without pay until OH deem her fit for work again.

No. She will be off work until her GP or consultant deem her fit for work. If she then returns and the employer refuses her permission to work, then that does become medical suspension. OH have no legal ability to issue a fit note for an employee, and their advice is only that- advice.

stevejbrecon

Hi

Thanks for the response.

Don't worry, I work in a different area of the law so I am fully versed in just how much of an !!! it can be.

She is employed by the council. This is because her role is a council funded position specifically aimed at improving literacy in a certain school. Its a strange situation but her employer is definitely the council.

The school have already apologised for the behaviour of the other staff member and an internal disciplinary procedure is being brought against them. Unison have largely washed their hands of the whole issue now that a mediation meeting has been arranged. Basically saying "we've done our bit, your on your own".

the school have said that she needs a fit note to return to work. Her doctors have said that they won't issue a fit note until OH have advised that she is fit to work again. Whilst I appreciate that OH have no legal ability to issue fit notes or sick notes when they are in the same doctors surgery and in fact the office next door, to her doctor, I see no real prospect of the doctor going against their advice.

Is the only solution from here for her to resign and claim constructive dismissal based on the harassment and bullying and hope that a settlement can be achieved that way? Or does she have ground for reinstatement of full sick pay if the grievance resolved and the school agrees that there was bullying?

Will she still need to claim separately for back payment of the missed money? Can she even do this? Or is that money just forever lost?

pathtofreedom

I'm not sure if you mean her sick pay from work is ending, or her ssp. If it is the ssp the next thing would be to look at claiming esa if she's still signed off work, she'll need fit notes for it I believe.

If she is just moving onto ssp from work sick pay, then you wouldn't have a way to get them to keep paying at that rate, a lot of companies you only get ssp, or just a couple of weeks full paid sick leave if you're lucky.