Being forced to resign?

Bogalot

Is her employer aware that she's claiming for caring for you for (at least) 35 hours a week? They may not take kindly to her on the one hand apparently being unfit for work, and on the other being a full time carer. In fact, if that contradicted her reasons for being off sick, that would be grounds for disciplinary action.

Mersey_2

Takeaway_Addict wrote: »

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

It's a bit complicated, but from what I gather essentially different parts of the Act came into force at different times, eg some in April 2010, October 2010, some in April 2011, September 2011 and 2013 - which is presumably why we're only just beginning to see some of the cases reaching Court and the case law being reported, eg there's a landmark one due in 2 months' time, as well as couple of similar ones awaiting the Upper Tribunal.


There's some guidance on the gov.uk and a few law firms' sites.

Crazy_Jamie

The advice you've received so far that your wife should not resign is correct. She cannot be 'forced' into resigning (legally doing so would probably constitute a dismissal), and the legal situation changes considerably depending on whether she is dismissed or resigns. There's no guarantee that she will have a viable claim in any event, but her legal position will be stronger if she is dismissed. As has already been said, she could be dismissed for reasons relating to capability, which is potentially a fair reason for dismissal, but there are a lot of hoops for the employer to jump through before they can fairly dismiss for that reason. Your posts don't contain enough information for any of us to determine how many of those hoops have been jumped through, and therefore how likely her employer is to be able to dismiss fairly for capability in the near future.

Having said that, I just want to address Mersey's post in more detail. Whilst it is well intentioned, it contains something of a muddle of legal advice, and I just want to clarify the relevance (and in some cases accuracy) of what was said.

Mersey wrote: »

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).

* 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).

The Equality Act doesn't protect from dismissal; it protects from discrimination and other associated actions. Those can (and often do) incorporate dismissal, but they don't have to. Plenty of discrimination claims are brought in relation to actions that do not lead to dismissal as well. Also, the majority of the Equality Act, including all of the sections relevant to this case and your advice, came into effect in October 2010, and claims under it have been brought since then.

Mersey wrote:

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.]

The first key element for any discrimination claim is whether the OP's wife is in fact disabled for the purposes of the Equality Act or not. That will depend on her condition, the length of it, and the impact of it on her daily life. It is important to clarify that to benefit from the Equality Act she must qualify as being disabled under it, at least insofar as disability discrimination is concerned.

Mersey wrote:

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

Though in the case of discrimination allegations the legal tests change depending on the specific allegation, and reasonableness per se doesn't come into it as much as basic unfair dismissal. For example, the tests under indirect discrimination and discrimination arising from disability are different.

Mersey wrote:

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.

Though there's no suggestion in any event that it did in this case.

Mersey wrote:

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.

Firstly, do not use these terms interchangeably. The only thing that matters is whether a Claimant is disabled for the purpose of the Equality Act or not. Many employees on long term sick would not qualify as disabled. Secondly, Griffiths was about the application of a sickness policy that essentially provided for warnings to be given based on absence record, and in Griffiths itself that policy was held to not be discriminatory. It did not involve capability. The two issues are distinct and the legal position will be different depending on the reason for which the OP's wife is dismissed (on the assumption that she ultimately is).

Mersey wrote:

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.

The duty to make reasonable adjustments only arises if the employee is disabled. There are actions that will be required before a fair dismissal can occur on the grounds of capability, and the making of certain adjustments may come into that, but the two duties and the two tests are different.

Mersey wrote:

It's a bit complicated, but from what I gather essentially different parts of the Act came into force at different times, eg some in April 2010, October 2010, some in April 2011, September 2011 and 2013 - which is presumably why we're only just beginning to see some of the cases reaching Court and the case law being reported, eg there's a landmark one due in 2 months' time, as well as couple of similar ones awaiting the Upper Tribunal.

Case law on the Equality Act has been coming through for years. Also, there is no 'Upper Tribunal' in employment law. Cases that are appealed go to the Employment Appeal Tribunal (EAT), and potentially then on to the Court of Appeal and Supreme Court. There are Upper Tribunal hearings, but in other areas of law.

Just to clarify, I don't want my response to come across as pedantic (though it may already have done so; the last point about the name of the appeal courts certainly was pedantic), and I appreciate that you're trying to be helpful, but clarification is important when you're giving advice in a situation like this. Most posters will (and should) take advice with a pinch of salt because they can't verify the source, but many will take it irrespective. As such it's important that it's as clear as it can be, particularly when you're quoting actual law as you did with the Equality Act. You don't want to leave the OP with the impression, for example, that his wife's employer has a duty to make reasonable adjustments irrespective of whether or not she is disabled under the Equality Act. So it is important to be precise when giving advice like that.

Mersey_2

Yes, I note what you say (and have no problem that you approach it from a Defendant/employer viewpoint); but, we clearly disagree as to whether i) a long-term sick person is capable of being deemed 'disabled.' I wasn't using the term 'interchangeably' at all: it will depend on the OP's OH's condition as I said. You seem to imply on three separate occasions above that what is written is correct...if disabled.


Which is why it depends on a claimant/appellant's individual illness and circumstances and whether the employer responded appropriately to them.


The Upper Tribunal I referred to - where cases are pending - is the appellate forum where appellants seek redress after the First Tier Tribunal (they largely deal with social security/welfare law appeals against the DWP and Councils etc yes, but there have been important landmark decisions re both EConvention Rights and EA obligations. Which you are probably aware of; but, if not see the Rightsnet site for examples of a dozen or so recent cases where they have succeeded and the Govt has lost in the UT, HC, CA).


Incidentally the content above was provided by Weightmans' Employment law department Head in their Updates which I receive, so I'm fairly satisfied it is accurate and up-to-date.


[As for the 'majority of the Act...' being in force in 2010 re commencement of provisions, that is true, but perhaps 'say' only 65%. Which is why a Select Committee chair - during the Coalition Govt years' - stated, "Can we have a firm guarantee that the rest of the Equality Act 2010 will indeed come into force during this Session [by Summer 2011], as I understand that there have been briefings to the contrary from the Conservative side relating to sunset clauses, Statutory Instruments, the Other Place and various other ways which might frustrate these measures."]


Incidentally I also do not accept your assertion that 'all measures relevant to this case' came into force in 2010. We cannot know that from the OP's post, as well as the fact that the Update and gov.uk both mention that the combined discrimination provision came into force in April 2011 and specific duties in September 2011.

Whilst I am a Solicitor (my PQE litigation experience is in Counter Fraud), and I have represented - as some on here will know from the Benefits pages - and succeeded at the Upper Tribunal in a couple of pro bono matters, so I am well aware it is a different body from an Employment Tribunal. Although it did sit in the ET in Manchester, to save the Appellant/my client having to travel to London to give lay oral evidence.


Incidentally, in case you are not aware, no-one provides 'legal advice' in posts on these forums (although I have acted pro bono for one OP who PM'd myself a couple of years ago and referred another to a former colleague who deals with welfare law litigation) - it tends to be a guide in the right direction, past experience or in some cases examples precedents where they or a relative has gained redress from their employer/bank/DWP - which I why I ended by saying the OP's OH is best obtaining medical and legal advice.


Crazyjamie - I agree with the entire content of your first paragraph incidentally. From there on in, I'll beg to differ as it's really just our different approach's without knowing the full facts as well as our differing idea re the % prospects of success of any future potential claim. (Whilst I have 12 years' PQE litigation experience acting for insurers and the MIB - and so am not 'claimant friendly' in that sphere, I equally have no truck with rogue employers who appear to believe they can dismiss or refuse to pay employees simply because the employee may not have the knowledge or assets to pursue the matter, as I'm sure you have read on many posts on these forums). But I'm pleased to see that you do at least recognise that employers do have to, 'jump through several hoops'/follow correct procedures in any case.