Being forced to resign?

Trevstanx

Hi all my Partner has been on sick leave about 6 month and her SSP is due to exhaust she has been employed by the company 2 years 3 months, she still isn't ready to return to work.

She has a welfare meeting at work this week and her manager had hinted at her asking her to resign before xmas at her last welfare meeting

She can claim IS for me/her as she has been claiming CA for me as i get PIP Standard DC... So resigning won't affect her in regards of getting benefits.

She doesn't want to be forced in resigning... What's her next move?

Trev

annandale

Not 100 per cent sure but if her sick pay has been exhausted I think she should take some advice on how to proceed. If she has to go on benefits after her SSP runs out I would think that her employer would be under no obligation to hold her job open

Trevstanx

Yeah but since she has been employed over 2 years she's entitled to 2 weeks pay and holiday days owed? If she resigns she won't be entitled to nothing?

JDC14

My understanding would be that as somebody on long term sick, they would still be able to accrue holiday entitlement and are also allowed to carry the statutory minimum into the next holiday year.

Although it may be slightly inconvenient for the business, she shouldn't resign unless she wants to. Although there is steps the Company may look to take in the future, they're hoping for the easy way out.

Savvy_Sue

If there's no realistic prospect of her returning to work at this stage, then her employer can dismiss her for incapacity, ie she can't do her job.

If she resigns, she'd still get the holiday pay she's accrued.

C_Mababejive

She shouldnt resign. They are just looking to dump.

TadleyBaggie

C_Mababejive wrote: »

She shouldnt resign. They are just looking to dump.

Agree. They will probably offer a settlement after a short while.

Undervalued

Savvy_Sue wrote: »

If there's no realistic prospect of her returning to work at this stage, then her employer can dismiss her for incapacity, ie she can't do her job.

If she resigns, she'd still get the holiday pay she's accrued.

Yes but it is virtually never in the employee's interest to resign under these circumstances (obviously unless they have an alternative job lined up). Sit tight and let the employer make all the moves. Respond reasonably slowly to any requests and string it out.

Takeaway_Addict

TadleyBaggie wrote: »

Agree. They will probably offer a settlement after a short while.

They may do but they could also be legally able to dismiss as has been stated.

Mersey_2

Hi Trev - Whilst the above is largely true and does happen, it's also important to realise that your OH's employer runs the risk of acting unlawfully should they dismiss/force her to resign.


You haven't said what her condition is (and there's no need to on an open forum, but I'll indicate below why this might make a crucial difference).


Firstly, the law:


* she has a statutory right not to be dismissed unlawfully given her over 2 years' of continuous employment; and


* sickness absence could be construed to be disability-related, either in full or in part (the crucial element) and if so, employees are entitled to protection against dismissal under the Equality Act 2010 (now in force as of 18 months ago).


In short, Tribunals and Courts have held that it can be indirect disability discrimination to dismiss a long-term sick employee. [Long-term hasn't been defined precisely, but appellants have succeeded who were off ill for 9 months.]


Clearly, each case turns on its facts, the illness and whether the employer has acted reasonably in all of the circumstances.


I assume the implied threat was not minuted, as if it had, it has been held that suggestions such as this by managers during a welfare meeting are unlawful in that they can exacerbate recognised conditions.


In Griffiths v the Secretary of State for Work and Pensions 2014, the Court of Appeal held that an absence policy alone were all employees were treated equally was capable of discriminating against and placing a disabled (or long term sick) employee at a substantial disadvantage.


Employers need to offer reasonable adjustments. Clearly this depends on the occupation and industry, but the Courts have held these to include 'job swap', working from home for the majority of the time and so on.


Also, even 'reassessing' all employees for redundancy or promotion can also be unfair and as such unlawful, if the employee's performance is affected at interview by their illness (Waddingham v NHS Business Services (2015)).


So she's best getting medical advice (and legal) if her illness means she's likely to be off work sick for a few more months. Also take notes at the time or soon after of what was said in any welfare meetings as this evidence will all aid her should matters escalate as has been suggested.

Takeaway_Addict

Mersey wrote: »

Hi Trev - Whilst the above is largely true and does happen, it's also important to realise that your OH's employer runs the risk of acting unlawfully should they dismiss/force her to resign.


You haven't said what her condition is (and there's no need to on an open forum, but I'll indicate below why this might make a crucial difference).


Firstly, the law:


* she has a statutory right not to be dismissed unlawfully given her over 2 years' of continuous employment; and


* sickness absence could be construed to be disability-related, either in full or in part (the crucial element) and if so, employees are entitled to protection against dismissal under the Equality Act 2010 (now in force as of 18 months ago).


In short, Tribunals and Courts have held that it can be indirect disability discrimination to dismiss a long-term sick employee. [Long-term hasn't been defined precisely, but appellants have succeeded who were off ill for 9 months.]


Clearly, each case turns on its facts, the illness and whether the employer has acted reasonably in all of the circumstances.


I assume the implied threat was not minuted, as if it had, it has been held that suggestions such as this by managers during a welfare meeting are unlawful in that they can exacerbate recognised conditions.


In Griffiths v the Secretary of State for Work and Pensions 2014, the Court of Appeal held that an absence policy alone were all employees were treated equally was capable of discriminating against and placing a disabled (or long term sick) employee at a substantial disadvantage.


Employers need to offer reasonable adjustments. Clearly this depends on the occupation and industry, but the Courts have held these to include 'job swap', working from home for the majority of the time and so on.


Also, even 'reassessing' all employees for redundancy or promotion can also be unfair and as such unlawful, if the employee's performance is affected at interview by their illness (Waddingham v NHS Business Services (2015)).


So she's best getting medical advice (and legal) if her illness means she's likely to be off work sick for a few more months. Also take notes at the time or soon after of what was said in any welfare meetings as this evidence will all aid her should matters escalate as has been suggested.

What changed 18 months ago compared to when the act was brought in during 2010?