Employer won't let me return from Shielding

Dollso

I work for a large publicly owned company and have been shielding as I was in the criticality extremely vulnerable group. Until now my medical condition has never interfered with my work.

During shielding, I was assured by my employer, that even though I was being paid company sick pay (which is 80% of my basic pay, a net loss of around £400 a month), it would not go on my record as a period of sick.

As of the 31st July Shielding has been paused, and I was intending, able and willing to start back to work then.

I spoke to my line manager before shielding ended about returning to work, but was told that it had to be approved by Occupational Health first.

IOH called me and they simply asked me a few questions about my medical history and what medications I was currently taking.

The Doctor from IOH informed me that the medication I was taking compromises my immune system and puts me at a higher risk of catching a severe Covid-19 infection, so he considered me extremely clinically vulnerable to Covid-19 and that current government guidance for anyone considered vulnerable was social distancing at work, which he said was not possible in my current role, but he said I was fit to return to work otherwise as long as I was to maintain social distancing.

The IOH report states:

"Fit to resume work while maintaining social distancing, but unfit to resume his usual work

Mr ******* is able to return to work but will need to maintain social distancing. This will make it difficult for him to return to his usual work. He could be offered alternative work where social distancing can be maintained. He is on medication that will make him more vulnerable to more severe Covid-19 infection. The use of face coverings does help to reduce the risks of spreading Covid 19 somewhat but social distancing is the main preventive measure, and this currently is recommended at 2M."

I was informed by my line manager, that I could not resume my duties, and that there was no alternative work available and that I needed to submit a sick line from my GP to continue to receive company sick pay, and this would go on my record as a period of sickness.

I contacted my GP to get a sick line, but he informed me he can't write me a sick line, as I'm not sick.

I contacted my line manager again and he still insisted I needed a sick line from my GP. So I contacted the Labour Relations Agency and the Law Center NI, as these were the contacts given on the Shielding advice letter should any employment issues arise.

Both the Labour Relations Agency and the Law Center NI both adviced that I was not sick so should not be asked to provide a sick line, and that I should be redeployed or medically suspended with full pay until it was safe to return to my usual work, they both told me to go back and speak to my manager and request redeployment or medical suspension, the LRA also stated that any loss of earnings as off the 31 July would be unlawful.

I contacted my line manager but he again said there was no alternative work available, that there was no such thing as medical suspension and that I had to submit a sick line by the next day or I would not get paid, I asked him how long I would have to stay out on the sick, and about my sick pay reducing further if this was to continue and he said yes I would go down to 50% of my current 80% after 6 months, and he couldn't tell me how long I would be on the sick, I explained that the 50% sick pay would not cover my mortgage and other payments as I was currently struggling on the 80% rate, and he suggested I could get a fit for work letter from my GP saying I was no longer vulnerable to Covid-19 and could then return to my normal duties, as that would over ride the IOH decision.

The company stance is that there is no alternative work available and they cannot just created a job for me, that it is my condition that is stopping me from coming to work, and it is company policy that anyone who cannot return to work after shielding ended must submit a sick line and go on the sick. 

As I am not refusing to attend work, it is in fact my employer who is not letting me work due to government guidelines on social distancing, and they have also refused my request for alternative work, and my work cannot be done remotely, am I legally entitled to be paid my full contractual wage?

If I refuse to submit a sick line can they refuse payment, discipline me or lay me off?

Is there any black and white law, regulations, or guidelines covering a case like mine?

Doing my own research online, I can't find anything regarding a situation like mine, just a lot about an employee's right to refuse to work due to health and safety, not in my case the employer refusing the employee return to work.

I did however find the section under the health and safety at work regulations act 1974, where the employer must carry out a workplace risk assessment and act on that, in my case that would be the IOH report, which states my current role to be unsafe?

I also found Section 44 of the employment right act 1996 which states the employee's right not to suffer detriment for refusing to work due to an imminent danger at work, in my case it is the employer who has identified the imminent danger and is refusing the employee return to work, so does this mean I'm entitled to full pay?

Thanks.

oh_really

Since you work for a large publicly owned company, I'd suggest contacting your union, they will know about medical suspension and advise accordingly. I'm sure a quick chat between union and your manager may be fruitful.

Dox

Give ACAS's helpline a call: https://www.acas.org.uk/contact

thebrexitunicorn

Dox said:

Give ACAS's helpline a call: https://www.acas.org.uk/contact

Acas will just refer you to the Labour Relations Agency. ACAS doesn’t operate in or provide advice for NI. 

Slinky

Try contacting your MP?

Dox

thebrexitunicorn said:

Dox said:

Give ACAS's helpline a call: https://www.acas.org.uk/contact

Acas will just refer you to the Labour Relations Agency. ACAS doesn’t operate in or provide advice for NI. 

Thanks - didn't read the whole of this hugely long post, whereas you obviously did!

Dollso

Short version 

I was intending, and due to start back to work after shielding ended, and spoke to my line manager about returning to work, but was told that it had to be approved by Independent Occupational Health (IOH) first.

The IOH report states:

"Mr ******* is able to return to work but will need to maintain social distancing. This will make it difficult for him to return to his usual work. He could be offered alternative work where social distancing can be maintained. He is on medication that will make him more vulnerable to more severe Covid-19 infection. The use of face coverings does help to reduce the risks of spreading Covid 19 somewhat but social distancing is the main preventive measure, and this currently is recommended at 2M."

My line manager contacted me, and informed me that I was not allowed to return to the workplace and I needed to submit a sick line from my GP and go on the sick, I informed my line manager that I was not sick, and I was willing to return to work, and requested he make all reasonable efforts to make the work place safe, including reasonable efforts to find alternative roles, failing that I suggested I should be medically suspended with full pay until it was safe to return to work, or a alternative role could be offered, I reminded him that any loss of earnings would be an unlawful deduction of wages and this was potentially a disability discrimination case.

To this date no adjustments have been suggested, and the only alternative work offered has been at a greatly reduced wage, which is not reasonable, and I have been told I must declare myself unfit for work to receive company (sick pay which only last 6 months), or get paid nothing.

I have instructed my union to lodge a grievance.

General_Grant

If your work cannot be done with "social distancing" are others being asked to do the same work without social distancing?  If so I would have thought your union would be really interested.

getmore4less

I contacted my line manager but he again said there was no alternative work available, that there was no such thing as medical suspension 

Ask them if  there is no such thing as medical suspension why is it in the employment act
https://www.legislation.gov.uk/ukpga/1996/18/part/VII/crossheading/suspension-on-medical-grounds

if you need the northern island version
https://www.legislation.gov.uk/nisi/1996/1919/part/VIII/crossheading/suspension-on-medical-grounds

ryanm8655

These guys might be interested too: 

https://www.equalityni.org/Home

Personally I’d be speaking to my union, assuming you pay into one? You should be able to get free legal advice.

oh_really

Are there developments?