Off Sick, Mental Health, Can Employer dismiss? Help re rights/options etc pls

DIYhelp76

Hello

I'm posting on behalf of a friend to try to get some advice to help him. 

Employment issues/law is not a strength of mine, so grateful for any help please

Friend has history of mostly serious mental health problems. He is aged 47.

He has worked for current employer for c. 20 years.

At his most recent HR meeting he was told his half pay will now end and no further entitlement to Statutory Sick Pay.  He has a mortgage and outgoings so this is very worrying.

They also said they wouldn't consider a phased/therapeutic return to his current role, justifying this by saying (a) concern for his mental health given his role is stressful, (b) phased returns tried many times previously and didn't work (i.e. he was still off sick during or shortly after these phased returns) and (c) would place too much strain on his colleagues who wouldn't be able to give him the required level of support in his current role.

They have said his options are redeployment or ill health retirement.

Redeployment - they have suggested roles but the only ones available are not suitable to him - in areas he has no prior experience or are at much higher grades than his current one. Due to his illness and treatment, he has memory difficulties and difficulties learning new skills.  So redeployment could be challenging and the employer has also stated this.

Employer has also mentioned it is unsustainable for them to keep relying on agency staff indefinitely to fulfil his current role and that if redeployment cannot be achieved, they may have to resort to their "sickness absence policy".  What does this mean in practice?  Can they fire him and if so in what timescale?  And, if so, would he receive any kind of payment?  I assume this would not be a redundancy scenario as he would not be being made redundant (his role still exists), just that he cannot perform the role due to sickness.

Are they entitled to fire him on these facts?  What time period must they allow for a suitable redeployment role to come up?

If redundancy did apply, it seems he would only be entitled to one week per year of service, so 5.5 months salary?

Employer suggests exploring ill health retirement.  What are the implications and likely success if he tried to apply for this?  We understand the decision would be made by a medical practitioner who I think would have to say he is incapable of performing any role ever?  As he is still young, 47, and may be able to work in some capacity in the future, especially if his mental health improves, is it unlikely he will be considered for ill health retirement?  Does this mean he might end up being fired on basis of sickness with no payment?

What are the grounds/implications of being awarded ill health retirement? What payment would be receive? Would this be a permanent, life-long thing? Would it mean he cannot then work in the future in any other role if he is becomes well enough?

Very grateful for any general advice on the best way forward.

Friend is on his own without union support, just a mental health support worker and the OH people.

Many thanks in advance.

DIYhelp76

Also, in his future meetings with HR, he has identified a colleague (working in a completely different area/capacity) at his place of employment who has become a support/friend. Is he entitled to bring that person along with him to future HR meetings to help/advocate for him?  And is he allowed to share his record, HR letters and OH reports with that third person?  

Phoenix72

How long have they been off already? If they have now exhausted half pay them must be a while.

On the face of it employer is being reasonable offering alternatives but at the end of the day if your friend is not capable of carrying out the duties then of course the employer can dismiss as long as correct process is followed, and we do not know the internal policies.

lincroft1710

Redundancy is not an option.


Short answer is that your friend can be dismissed on capability grounds and personally, given what you have said about his work/sickness record I am surprised the employer hadn't done this earlier. Timeline will be according to legislation or company policy if this is more favourable to him.


Ill health retirement is going to depend on the terms of his company pension. State benefits are limited in such cases. Have a look on the Benefits board for any useful threads or start one yourself.


Obviously what your friend needs is the best financial option available (which won't be very lucrative anyway) so basically it is a matter of seeing if IHR is a viable option.

oldernonethewiser

As others have said he can be dismissed on grounds of ill health.

Been there, done that from the management side.

Jude57

Is this a public sector employer? I'm assuming your friend is not a Union member?

Whoever the employer is (we don't need specifics) this is not a redundancy situation. It's the role that becomes redundant, not the employee, and as the employer is having to use agency staff to cover your friend's role it is clearly not redundant. Your friend should forget any likelihood of a redundancy pay out.

If this is a public sector employer, the pension scheme will have defined rules on what qualifies as ill-health retirement for the purposes of early access to the employee's pension. Schemes will vary but, again, assuming public sector, it tends to require the employee to be incapable of carrying out ANY role for the employer within the medium to long term. Unfortunately for those with mental health issues, it's virtually impossible to say that because their illness often fluctuates so it looks unlikely that your friend would qualify for his pension now on ill-health grounds. That said, however, the employer being willing to offer ill-health retirement as an option could be helpful in that regard so it's still worth considering once your friend has found out what his pension scheme requirements are.

In any event, your friend needs to find out what benefits he may be able to claim, even while working and, given his current poor mental health, I'd recommend seeking help from Citizens Advice Bureau if there's one nearby with a benefits adviser. I'd suggest he makes this a priority. The CAB can also assist with advice on debt if that's a concern for your friend. Alternatively, he (or you) could run his details through an online benefits checker such as:

https://www.entitledto.co.uk/

Ultimately, your friend's employer can't indefinitely continue to bear the costs of employing someone who is unable to carry out their job. Salary isn't the only cost to an employer; even though company sick pay may have ended, your friend is still accruing annual leave entitlement which must be paid as must the resultant income tax National Insurance and employer's pension contributions where applicable, as well as the cost of managing your friend's sickness absence and the cost of agency staff. They can fairly dismiss on the grounds of capability and from what you've written, that's probably the next stage of their sickness absence management policy. 

As worrying as this is for your friend, the constant stress of dealing with his employer, no matter how decent they are being, is bound to take a toll. Being released from that stress could potentially be a good thing. People do recover from depression and anxiety and return to the workforce even if not to their former job or career. People do manage to live on benefits income even though their lifestyle will change. There's a way forward for your friend and with the right support, you can help him find the best way forward for him, even if it's not a way he'd previously considered.

Brie

Agree with Jude that looking to CA and the entitedto website is a priority to ensure that he is getting whatever money coming in that he can.  

Second priority is to apply for an ill health retirement.  47 is not particularly young to apply for this (I've seen cases of people under 30.)  It is a long process of getting access to his medical records to be review by a doctor working on behalf of the pension scheme, perhaps being examined by that doctor or another qualified individual.  Even with the employer working on his behalf I wouldn't expect this to be completed in under a year given that his medical issues are not, from what you say, urgent.  There would be a fast track evaluation if he was terminally ill but thankfully that's not the case here.  

Assuming that an ill health retirement is granted there would then be a review every 5 or so years to see if his situation has changed sufficiently for him to regain employment somewhere.  Some schemes it would be for similar roles and others might consider he could work in something completely different.  So he might have been an accountant but they might think he could gain work in a McDonalds.  But that is a worry for the future, if in the meantime he has gained some benefits such as PIP that wouldn't be taken away due to working.  

If Citizens' Advice isn't available he might try NationalDebtline, StepChange or CMA (Community Money Advisers) as they should be looking to help with benefits as well, but are likely to have had less experience.  

Marcon

DIYhelp76 said:

Hello

I'm posting on behalf of a friend to try to get some advice to help him. 

Employment issues/law is not a strength of mine, so grateful for any help please

Friend has history of mostly serious mental health problems. He is aged 47.

He has worked for current employer for c. 20 years.

At his most recent HR meeting he was told his half pay will now end and no further entitlement to Statutory Sick Pay.  He has a mortgage and outgoings so this is very worrying.

They also said they wouldn't consider a phased/therapeutic return to his current role, justifying this by saying (a) concern for his mental health given his role is stressful, (b) phased returns tried many times previously and didn't work (i.e. he was still off sick during or shortly after these phased returns) and (c) would place too much strain on his colleagues who wouldn't be able to give him the required level of support in his current role.

They have said his options are redeployment or ill health retirement.

Redeployment - they have suggested roles but the only ones available are not suitable to him - in areas he has no prior experience or are at much higher grades than his current one. Due to his illness and treatment, he has memory difficulties and difficulties learning new skills.  So redeployment could be challenging and the employer has also stated this.

Employer has also mentioned it is unsustainable for them to keep relying on agency staff indefinitely to fulfil his current role and that if redeployment cannot be achieved, they may have to resort to their "sickness absence policy".  What does this mean in practice?  Can they fire him and if so in what timescale?  And, if so, would he receive any kind of payment?  I assume this would not be a redundancy scenario as he would not be being made redundant (his role still exists), just that he cannot perform the role due to sickness.

Are they entitled to fire him on these facts?  What time period must they allow for a suitable redeployment role to come up?

If redundancy did apply, it seems he would only be entitled to one week per year of service, so 5.5 months salary?

Employer suggests exploring ill health retirement.  What are the implications and likely success if he tried to apply for this?  We understand the decision would be made by a medical practitioner who I think would have to say he is incapable of performing any role ever?  As he is still young, 47, and may be able to work in some capacity in the future, especially if his mental health improves, is it unlikely he will be considered for ill health retirement?  Does this mean he might end up being fired on basis of sickness with no payment?

What are the grounds/implications of being awarded ill health retirement? What payment would be receive? Would this be a permanent, life-long thing? Would it mean he cannot then work in the future in any other role if he is becomes well enough?

Very grateful for any general advice on the best way forward.

Friend is on his own without union support, just a mental health support worker and the OH people.

Many thanks in advance.

Nobody can answer your questions on ill health retirement without knowing the rules of the particular scheme to which he belongs. He needs to ask his employer/the trustees/pension administrator/provider, as the case may be - HR should be able to tell him where to start.

If it's some sort of defined benefit scheme, then he may well be given an enhanced pension if ill health early retirement is granted.

If it's a defined contribution scheme, then normally he'd only get 'what's in the pot' - so no enhancement and probably not a lot of cash - but find out before you depress him by saying that!

Brie said:

Assuming that an ill health retirement is granted there would then be a review every 5 or so years to see if his situation has changed sufficiently for him to regain employment somewhere.   

Rare in the private sector. Normally once an ill health pension is granted it's for life, but it's crucial to know the rules of the scheme in question.

Savvy_Sue

DIYhelp76 said:

Also, in his future meetings with HR, he has identified a colleague (working in a completely different area/capacity) at his place of employment who has become a support/friend. Is he entitled to bring that person along with him to future HR meetings to help/advocate for him?  And is he allowed to share his record, HR letters and OH reports with that third person?  

He may not be entitled to be accompanied, but it doesn't seem like an unreasonable request to be accompanied by a colleague. It's possible the employer will say that he may be accompanied: if not, he should ask.

I can't see any reason he can't share whatever he like of his own personal information with whoever he likes.

Undervalued

I broadly agree with the points made by the previous posters.

One further point worth considering is if your friend's illness amounts to a disability (in the employment law sense of the word). "Routine" mental health conditions generally do not, unless particularly severe and / or long lasting. However there must be at least some valid arguments in the case you describe.

If your friend does "qualify" then the employer is legally obliged to make "reasonable adjustments" to help them continue working. If he is only ill (sorry horrible phrase) and not disabled then the employer has no obligation to make any adjustments a doctor may suggest and can simply say, in effect, do you full job or stay off sick until eventually we dismiss you.

Reasonable adjustments only go so far. Many employers actually do far more than the law would require which sometimes gives a false impression of what is required. However it may be worth investigating.

There is (or was) a charity that specialised in helping those with MH related employment issues called the Richmond Fellowship. Also worth a look.

 

DIYhelp76

Hi,

Just wanted to say thanks to everyone for all the helpful replies and recommendations.  We will follow these up. No, he is not a Union member unfortunately.  Will follow up some of the leads in these replies to try to help him further. Apologies for the delay coming back to this thread but been very busy.