Dismissed on illhealth grounds

Nual

A friend has been working for a charitable trust for more than 10 years. She worked 3 days a week in term time and 5/6 days a week during school holidays.

Early in 2018 she was dignosed with a growth on her pituitary gland, initially thought to be a tumour but later told it was an autoimmune response by her pituiary. The growth was pressing on her optic nerve and her sight was going. After removal of pituitary she needs to take steroids and inject when she is under any stress( physical/ mental). It is proving very difficult to get the level right to enable her to function. She was also simultaneously dignosed with psoriatic arthritis ( also an auto immune disease).

She has tried to go back to work 4 times but has been sent home. She has been on sick leave for 6 months. Last week she received her P45 and a letter saying her statutory sick pay had ended.

I will post this on the benefits board as well, but my understanding was that there should be a process re capabitity and also an offer of suitable alternative employment if unable to carry out normal role due to disability? Can anyone advise please?

TBagpuss

Is she saying that there is a suitable alternative role she could carry out.?

My understanding is that they should consider whether there are any reasonable adjustments which they can make to enable her to carry out her existing role, assuming that her condition is a disability .

They also need to have a fair process to dismiss, although this may be different to the process they would use if they were dismissing her due to any conduct on her part. After all, they are not seeking to prove that she has done anything wrong,

Had she had any discussions with them, perhaps when she tried to return to work, about how things were affecting her and her ability to return to work?

sangie595

If she had tried to return to work for times, that would suggest that there had actually been quite substantial conversations with her, so I think that it is best if she posts herself - the information you have is simply not detailed enough. But in very simple terms, it sounds as though there had been several attempts to support her return too work, there may be no other work she can do, and dismissal may be the final and only remaining option.

Whether they have completed a legally fair process, and what, if anything, she might wish to do if they haven't really depends on all that detail. But from the sounds of it, even if they haven't competed the best capability process, I doubt they'd much in it for her - it's clear from what your are saying that she isn't fit to work, so dismissal would be a reasonable outcome at this stage.

KiKi

Hiya - yes, they most certainly should have carried out a process regarding capability for the role. If there is a suitable alternative role or reasonable adjustments made for her then that should be considered, too, but not a guarantee.

Receiving a P45 with no warning or discussion sounds odd. What happened up to that point? Did she literally get the letter out of the blue with no other discussions? When you say she 'tried' to return to work four times, what does that actually mean? What did she do to do that? What conversations were had?

Nual

She rang each time - couldnt speak to the boss because he was 'not available' , said she would be returning to work the next day and then when got there told to go home. No discussion at any point with anyone - they wouldnt talk to her

Marcon

Nual wrote: »

She rang each time - couldnt speak to the boss because he was 'not available' , said she would be returning to work the next day and then when got there told to go home. No discussion at any point with anyone - they wouldnt talk to her

Why not? If she's been there for 10 years that sounds very odd.

ReadingTim

Nual wrote: »

She rang each time - couldnt speak to the boss because he was 'not available' , said she would be returning to work the next day and then when got there told to go home. No discussion at any point with anyone - they wouldnt talk to her

Sounds like she wasn't talking to them either, or maybe both sides were talking, but neither listening....

Yes, it's strange that they wouldn't talk to her, but then again, it also seems a little odd for someone who's been off for some time for something quite serious to simply declare that they're fit to return to work and expect to pitch up the next day and carry on as if nothing happened.

Suspect there are some elements of the process which have been forgotten, mis-remembered or simply misunderstood and things aren't quite as your friend has described them, OP. And unfortunately, until one can get a clear picture of what actually happened, it's difficult to say if it was wrong.

sangie595

Nual wrote: »

She rang each time - couldnt speak to the boss because he was 'not available' , said she would be returning to work the next day and then when got there told to go home. No discussion at any point with anyone - they wouldnt talk to her

I appreciate that you are trying to help your friend. You aren't helping! She really needs to post here herself if she wants some advice. If not, consult a lawyer. We really can't provide anything like accurate advice based on a second and third hand conversation with someone it hasn't happened to and wasn't there.

At this stage it does appear that you/ she thinks that she is entitled to an alternative job because she appears to be unable to do her existing job. That isn't the case. If there is alternative job available which she could do there might be some questions to ask. But you cannot expect an employer to creates a role for her because she can't do the one she had.

Beyond that, the story just isn't clear enough for worthwhile advice. You don't "try" to go back to work - your doctor says you are fit to return and you go back. It's that simple. So if she's been fit to go back she hasn't provided a fit note? So what was she being paid? Was she being paid? That's just one part of this that isn't clear. She needs to post herself.

sangie595

I have just realised that you have also posted this story for benefits advice, and from what you say, I simply can't understand how she has been assessed as fit to work or attempted to try to return to work anyway. It sounded bad enough, what you described here, but

Nual wrote: »

She is too ill to cope with any of this. Her sight is affected, her memory also and she is just not able to cope with turning up to appointments etc. She is on the verge of giving up on everything. So no MR, I dont know when the original decision was made and cant get any dates out of her as she cant remember. She is in a really bad way and getting a P45 with no discussion after working there for more than 10 years has just floored her.

I dont understand the current benefits system. Might she be eligable for contributory based ESA ?

If she is too ill to cope, unable to remember things, not able to see (well?)... hasn't even been well enough to cope with her PIP claim or to get to appointments for benefits, even allowing for some upset over being let go she simply isn't fit to work at anything right now, and so why is she trying to return. If someone tried to turn up to work in that state, I'd also refuse to allow them to return! Quite apart from the fact that she's a liability to herself, the employers insurers would go ballistic at the very thought.

Looking at this again, also, I'm failing to see where it says she's been dismissed. So here's what I think has happened. Smallish charity? Maybe not a lot of employees? She has run out of SSP. The employer has to then write to her to tell her why they aren't paying SSP. And that's what they did. Did they ALSO say she was dismissed? Or did they just[bU] include her P45? Because a smaller and inexperienced employer, knowing they won't be paying someone again might just send a P45 so that person had evidence of their earnings to claim benefits now the employer has nothing to pay. It is just possible they don't have a clue what they are doing!

That said, given the description you have given of her condition, even if there is a dismissal, she isn't likely to be in a strong position to make it worthwhile fighting. If I am correct, the employer will say that they didn't realise what the situation is, and whilst ignorance of the law is no excuse, that will be heard. The tribunal would also ask, if they hadn't got it wrong, what would the result have been. If they'd got the dismissal right, it would have been fair- she's not in a fit state to continue to work, and any fair prices would have come to that conclusion. So she'd be entitled to next to nothing. Not worth the hassle of the claim. Certainly not worth the stress and difficulty of a claim when she is in such a poor state of health anyway.

Unless she can provide something of a better case for us to see, I'd honestly advise that she's best off concentrating on the most important stuff of getting her benefits in place properly and getting the medical treatment she needs. She's lucky to have a friend helping her, but there's a limit to how much anyone can do for someone else, so you should be focusing on winnable battles. I doubt this is one of them.

mariefab

If she discovers that sending the P45 was intended to indicate that she has been dismissed, she would be entitled to notice pay and payment for any untaken, accrued holiday entitlement.

Nual

Thanks all. It is compicated and you are right, I dont really know the details.

She doesnt have a computer or a smart phone and is not computer literate. She turned up at work because she wanted to go back, she missed her workmates and couldnt manage on the SSP. She has been submitting sick/fit notes throughout.

I will try and find out if she has definately been dismissed, didnt occur to me that getting a P45 in the post could mean anything else. And you are right , she is going to find it hard enough to navigate the benefits system without taking on her ex-employer as well.

I am pretty sure she hasnt any holiday pay due, as early on before her operation she was using holiday rather than sick leave because she couldnt manage on the sick pay.

Just for info, the director at the trust is a solicitor and there are no eg HR roles, but I imagine he knows about employment law - and also that she is not well enough or confident enough to challenge anything.