Off work now formal meeting

Nickyno

Asking for someone else.  She has been off work from a well known supermarket for 15 weeks, due to mental health and anxiety issues (suffered since early teens), recently requiring hospital treatment for self harm.  She is a single parent with 3 young children under 5. She has had 1 informal meeting and 1 formal meeting with the employer. At the formal meeting they have given her 3 options.  1) go back to work (regardless of being ready or not). 2) have a very formal meeting we're the employers will decide whether she is fit or not (and they will terminate her contract if need be). 3) hand her notice in.  She can't afford to hand her notice in as she will lose supporting benefits, she is not ready to return to work.   Obviously this has now had a further impact on her mental health.  
Looking for advice. NOT JUDGEMENT.  Thankyou.

elsien

Are they doing any occupational health referrals? 

Undervalued

Nickyno said:

Asking for someone else.  She has been off work from a well known supermarket for 15 weeks, due to mental health and anxiety issues (suffered since early teens), recently requiring hospital treatment for self harm.  She is a single parent with 3 young children under 5. She has had 1 informal meeting and 1 formal meeting with the employer. At the formal meeting they have given her 3 options.  1) go back to work (regardless of being ready or not). 2) have a very formal meeting we're the employers will decide whether she is fit or not (and they will terminate her contract if need be). 3) hand her notice in.  She can't afford to hand her notice in as she will lose supporting benefits, she is not ready to return to work.   Obviously this has now had a further impact on her mental health.  
Looking for advice. NOT JUDGEMENT.  Thankyou.

How long has she worked there? If less than two years her rights are very limited.

Also, are her mental health problems sufficiently severe to have been formally diagnosed as a disability for employment law purposes? Whilst some severe and long lasting MH issues can fall into this category the majority of A & D situations don't unless they have been ongoing for at least a year. Also, the employer would need to have been made formally aware of the disability (unless it was so obvious that a lay person should reasonably have been aware).

If a disability exists then that gives some additional protection as the employer must make "reasonable adjustments". Whilst that would help a bit it still does not allow unlimited sick leave etc.

Assuming she has been employed for more than two years the employer needs to follow due process (which it seems they are) but the hard truth is that yes they can take steps to terminate her employment unless the situation improves fairly rapidly. 

Grumpy_chap

Has the individual seen a Dr about her medical issues?
Does the individual have a "fit note"?
Who was in attendance at the informal and formal meeting?
Has she been referred to Occupational Health by the employer?

EnPointe

Grumpy_chap said:

Has the individual seen a Dr about her medical issues?
Does the individual have a "fit note"?
Who was in attendance at the informal and formal meeting?
Has she been referred to Occupational Health by the employer?

is the OPs 'friend' a member of a union , if not  there isn't a lot  to be done unfortuantely  as 'deathbed conversions'  are  not  straightforward in getting help especially if  theTU in question is not  both strong and (formally) Recognised in that workplace. 

 your other questions are spot on and the questiosn thata wellinformed friend   or a TU rep would be asking 

Nickyno

Grumpy_chap said:

Has the individual seen a Dr about her medical issues? 
  Yes, every 2 to4 weeks.

Does the individual have a "fit note"?
 Not fit for work

Who was in attendance at the informal and formal meeting? The area manager

Has she been referred to Occupational Health by the employer?
No

Not a member of TU

Worked there for 6 years

Hoenir

Nickyno said:

She has been off work from a well known supermarket for 15 weeks, due to mental health and anxiety issues 

Previous absence record during the last 6 years? 

Is this in anyway work related? 

gm0

You already covered don't resign (benefits impacts)

Do start to plan for capability dismissal (what to do next when employment ends - in what order should it happen).

Do check facts and known employer prior practice with colleagues on compromise/settlement agreement. 
It is not resignation so less hostile to benefits.  But the extra money offered (above contractual) is savings in DWP's calculator.  Employer pays a lawyer to explain terms to employee if this is used. Waives all possibility of tribunal claims for the extra £ offered. Employer gets a shorter process to exit you and inoculates tribunal risk.  Optional for the employer.  No idea which process this employer prefers. Some do. Some do not.

Do consider presenting a pathway to return (even if over a few weeks more) and show commitment to and existing progress on that plan - to get to "it is going to be possible to return and soon - targeting x/x/x" - perhaps also asking for ramping hours back up.  Something that is changing that *enables* it needs to be part of it.  Progress on anxiety scores at last GP review. Meds settling in.  Queued up for/appointment at CBT.  Whatever it is. 

Hard though this idea may well seem to your friend at the moment.  The key is that a credible identified path to return to work inhibits dismissal (it doesn't stop it if the employer HR think they are already covered off). But a plausible path to return is very often tried.  And yes kept under review. More sessions likely.   But you are not then dismissed ahead of trying to execute the planned return.  For medical capability.  So in the next session - if your friend is credible about a path forward - they may suspend the dismissal discussion i.e wait while this is tried and review progress x weeks later or at the return date (if soon).  But if there is no plan. No idea of a date.  No sign of a recovery track or a basis for one to exist.  The process will just ratchet on forthwith towards starting an end of employment process.  As your friend is on sick leave for anxiety this will likely be medical capability dismissal (return to work not possible). 

Do consider (briefly) if a valid (documented) claim can be asserted that this is a formal disability already.  And critically ALSO what kind of category of reasonable adjustments the employer could make to this job role and duties and the scheduling of them that might move impossible to return to possible to return.  Work related sources of stress and anxiety triggers. This loop might lead to return with reasonable adjustments offered (to avoid protected characteristic discrimination) or it might just extend matters from concluding for a while during a review and then end with medical capaiblity dismissal anyway.  But begin with the end in mind.  What would it take to make return possible.  That is inside the job.  Just using this process as delaying tactics rather than as intended would not be stress free.  And it does not sound like more stress is really on the menu.

elsien

You also need to bear in mind that even if the illness can be categorised as a disability, reasonable adjustments are not obligatory and often don’t go as far as many people think they should. 

And depending on her position, in the well-known supermarket chain, compromise agreements tend not to be top of the agenda for further down the ranks.
So it may well be case, so as above preparing and hoping for the best, but planning for the worst. In her case, though, I think I would definitely be pushing for an occupational health referral.

Undervalued

elsien said:

You also need to bear in mind that even if the illness can be categorised as a disability, reasonable adjustments are not obligatory and often don’t go as far as many people think they should. 

And depending on her position, in the well-known supermarket chain, compromise agreements tend not to be top of the agenda for further down the ranks.
So it may well be case, so as above preparing and hoping for the best, but planning for the worst. In her case, though, I think I would definitely be pushing for an occupational health referral.

   Indeed.

At least one of the major supermarkets has a reputation for fighting just about all of the employment tribunal claims they receive, even ones where it would be far cheaper to settle. Some large employers see this a a good overall strategy as it tends to deter other more spurious claims.