Employer denying access to work...

Shinniesta

My wife has an issue with the ball and socket in her hip joints and has been suffering really bad pain for the last few years. She’s had an operation on it but still isn’t great and will probably need a replacement. She’s classed as disabled and at work they’ve been told by occupational health to put certain adjustments in for her to work, however a couple of months back, this wasn’t adhered to and she ended up hurting herself even more and was off work for four weeks and is now back on a crutch…

The Doctor said she was fit for work, occupational health have said she was fit for work, and she went back last Monday, however on Thursday she was marched off the premises and told they’d done a risk assessment and she wasn’t allowed to work with the crutch. She received a copy of the risk assessment and it states that there is 1 high risk factor "Due to building work and layout and process changes taking place it would be unsafe for anybody on crutches to be working in the area. " However she’s spoken to HR this morning and they’ve told her that the risk assessment was regarding her making her way in to work with the traffic outside and not whilst she’s at work doing her job as that would not be a problem… They also told her that she won’t be getting paid and will need to go to the doctors to get the doctor (who last week said she was fit for work) to sign her off as unfit for work as work have told her she can’t go in.

Worth noting that she saw the health and safety officer on the Wednesday in the premises, walked past him and said “Hello” and they still allowed her to finish her day’s work on Wednesday and attend the premises on Thursday. Also on the Thursday morning, the risk assessment was carried out, the H&S officer didn’t speak to my missus and didn’t attend the premises until she was escorted off the site.

From a quick search online, if someone is prepared to work and fit for work by the doctors, but the employers are denying the employee to work, that she should be suspended on full pay during the time that they won’t let her work?

She has another operation on her other hip in June, and she was intending, as with her previous operation, to return to work on a single crutch. There was absolutely no issue with this on her previous operation, however it seems as though they are potentially trying to force her out of the company avoiding any breach of the Disability Discrimination Act?

Any help or advice much appreciated

Bradden

I would say that you are right.. if she is being sent home by her employer then they should be paying her.
Ask them to put it all in writing and then I would seek proper legal advice... IMHO you have a decent argument under frustration of contract.

Undervalued

Shinniesta wrote: »

My wife has an issue with the ball and socket in her hip joints and has been suffering really bad pain for the last few years. She’s had an operation on it but still isn’t great and will probably need a replacement. She’s classed as disabled and at work they’ve been told by occupational health to put certain adjustments in for her to work, however a couple of months back, this wasn’t adhered to and she ended up hurting herself even more and was off work for four weeks and is now back on a crutch…

The Doctor said she was fit for work, occupational health have said she was fit for work, and she went back last Monday, however on Thursday she was marched off the premises and told they’d done a risk assessment and she wasn’t allowed to work with the crutch. She received a copy of the risk assessment and it states that there is 1 high risk factor "Due to building work and layout and process changes taking place it would be unsafe for anybody on crutches to be working in the area. " However she’s spoken to HR this morning and they’ve told her that the risk assessment was regarding her making her way in to work with the traffic outside and not whilst she’s at work doing her job as that would not be a problem… They also told her that she won’t be getting paid and will need to go to the doctors to get the doctor (who last week said she was fit for work) to sign her off as unfit for work as work have told her she can’t go in.

Worth noting that she saw the health and safety officer on the Wednesday in the premises, walked past him and said “Hello” and they still allowed her to finish her day’s work on Wednesday and attend the premises on Thursday. Also on the Thursday morning, the risk assessment was carried out, the H&S officer didn’t speak to my missus and didn’t attend the premises until she was escorted off the site.

From a quick search online, if someone is prepared to work and fit for work by the doctors, but the employers are denying the employee to work, that she should be suspended on full pay during the time that they won’t let her work?

She has another operation on her other hip in June, and she was intending, as with her previous operation, to return to work on a single crutch. There was absolutely no issue with this on her previous operation, however it seems as though they are potentially trying to force her out of the company avoiding any breach of the Disability Discrimination Act?

Any help or advice much appreciated

Broadly yes, this probably amounts to a medical suspension in which case she should be paid.

However, did her doctor say she was fully fit for work or only for restricted duties or with certain adjustments?

Regarding disability discrimination, is she actually (legally) disabled? Assuming these operations are likely to fix the problems then she may well not be.

Unless she is actually disabled her work have no obligation to make any adjustments or allow restricted duties. They can say do your full job or stay off sick. In those circumstances she is only entitled to whatever the normal sick pay would be (maybe only SSP) and not her full pay.

Shinniesta

Undervalued wrote: »

Broadly yes, this probably amounts to a medical suspension in which case she should be paid.

However, did her doctor say she was fully fit for work or only for restricted duties or with certain adjustments?

Regarding disability discrimination, is she actually (legally) disabled? Assuming these operations are likely to fix the problems then she may well not be.

Unless she is actually disabled her work have no obligation to make any adjustments or allow restricted duties. They can say do your full job or stay off sick. In those circumstances she is only entitled to whatever the normal sick pay would be (maybe only SSP) and not her full pay.

She's been on reduced hours and restricted duties through the doctor and occupational health's advice for months. She was told to do something by her direct manager that she wasn't supposed to do, but that then caused her the latest time off work as it aggravated her hip and she was in agony and now back on a crutch that she wasn't on.

Regarding the disability, she has a disability badge, PIP payments etc. As far as we are aware, she is classed as having a disability. It's also noted as a disability in her letters from occupational health.

Undervalued

Shinniesta wrote: »

She's been on reduced hours and restricted duties through the doctor and occupational health's advice for months. She was told to do something by her direct manager that she wasn't supposed to do, but that then caused her the latest time off work as it aggravated her hip and she was in agony and now back on a crutch that she wasn't on.

Regarding the disability, she has a disability badge, PIP payments etc. As far as we are aware, she is classed as having a disability. It's also noted as a disability in her letters from occupational health.

OK, so in that case they must make reasonable adjustments to allow her to work. So it all comes down to what is reasonable. Ultimately, if she can't reach agreement, then only an employment tribunal can decide.

Shinniesta

Work had made reasonable adjustments, she was at work with no issues Monday to Thursday, at which point they escorted her off the premises as if she was a criminal, stating in a risk assessment:

"Due to building work and layout and process changes taking place it would be unsafe for anybody on crutches to be working in the area. "

From a search, it's up to them to find her other suitable work, or to pay her on full pay for 26 weeks... Instead they've said to go to the doctors and tell the doctor that she is not fit for work, which isn't true as she is capable of doing her work with the restrictions in place.

lincroft1710

Shinniesta wrote: »

From a search, it's up to them to find her other suitable work, or to pay her on full pay for 26 weeks...

I am sure I have read in another thread on this board, that the employer does not have to "create" a role, and if none is available they are not obliged to pay her for not working.

Takeaway_Addict

Shinniesta wrote: »

She's been on reduced hours and restricted duties through the doctor and occupational health's advice for months. She was told to do something by her direct manager that she wasn't supposed to do, but that then caused her the latest time off work as it aggravated her hip and she was in agony and now back on a crutch that she wasn't on.

Regarding the disability, she has a disability badge, PIP payments etc. As far as we are aware, she is classed as having a disability. It's also noted as a disability in her letters from occupational health.

Because she has done something for months doesn't mean it can end up being a perminant change (though often it is). Ie it was reasonable for shortened hours and reduce work for a certain period of time but not as a complete change of job.

Perhaps the employer has had enough and expected your wife to return to work nearer her original contract and is forcing the situation?

Shinniesta

Takeaway_Addict wrote: »

Because she has done something for months doesn't mean it can end up being a perminant change (though often it is). Ie it was reasonable for shortened hours and reduce work for a certain period of time but not as a complete change of job.

Perhaps the employer has had enough and expected your wife to return to work nearer her original contract and is forcing the situation?

Possibly... However I refer to notes in the Occupational Health Assessment:

"The Equality Act 2010 which superseded the Disability Discrimination Act 1995 is likely to apply to this condition and therefore all reasonable adjustments to accommodate her in the workplace are expected of an employer."

Which this would seem to breach...

Also, let me just say, my wife doesn't want to sit at home and get free money. She wants to be at work, however her employers are telling her that she can't. Judging from what I've seen, they can't just say "You can't come in, get a doctors note and get SSP" though.

FBaby

"Due to building work and layout and process changes taking place it would be unsafe for anybody on crutches to be working in the area. "

That's the risk. What is that building work? When did it start, when is it due to finish. What is that makes it dangerous being on crushes?

What do they mean by 'area'? How large is that 'area' and can they find her a job in another 'area'?

Shinniesta

lincroft1710 wrote: »

I am sure I have read in another thread on this board, that the employer does not have to "create" a role, and if none is available they are not obliged to pay her for not working.

Not suggesting that they have to create a role. Simply that if they don't have anything suitable, they can't just tell her to go and say she's sick, and to get SSP. What I've found seems to suggest they can't just deny someone the right to work and not pay them.