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  • FIRST POST
    • diesel_doglet
    • By diesel_doglet 14th Sep 18, 12:15 PM
    • 937Posts
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    diesel_doglet
    Dismissal while on long term sick
    • #1
    • 14th Sep 18, 12:15 PM
    Dismissal while on long term sick 14th Sep 18 at 12:15 PM
    Hi All,

    I am sorry for the length of this post but I will try to cover everything. My wife has yesterday received a letter dismissing her from her work. She has been through hell and back after an accident and is working so hard to get back to work so this is really upsetting and and I am just looking for some advice.

    Jane has been employed with her employer since approx. Feb 2018 but has been on long term sick for 9 months after suffering a major accident resulting in a major head and brain injury. The first 8 months were spent permanently in hospital. Jane has been home 6 weeks.

    Jane has had no sick pay from the employer just SSP which she had for 6 months. Employer has been provided with sick notes that cover the time she has been off sick and covers her until mid-October. Employer consists of owner, 3 staff and owners wife.

    Early August, employer requested Jane's permission to obtain a medical report. Jane gave her permission but selected the option that she would be sent a copy first of which she could request amendments prior to the final report being sent to employer.

    Jane received the draft medical report on the 18/08. The report invited Jane to write back with any amendments. The report was very vague, 5 weeks out of date and did not give much information as to when Jane could return to work or how she would improve. There were also several items on the report that we disagreed with and as such we tried to contact the hospital several times and in the end we wrote back to the hospital asking for those amendments on 28/08.

    The employer sent an email on 31/08 with a letter also sent in the post. The email was missed initially as this dropped into junk mail - the letter was received on 04/09. The letter requested Jane attend a meeting on the 06/09 at the company offices. This is the first contact Jane has had off her employer in 9 months. They also asked for Jane to bring the medical report that they requested from the hospital. Due to the very limited notice we received and the fact that we did not have the medical report, we only had a draft that was sent to us, Jane wrote back and asked for the meeting to be delayed until the employer has the final medical report as provided by the hospital.

    The employer believed the notice given was adequate and still put pressure on us for a copy of the medical report. Employer advised that have paid for an independent HR specialist to attend on the 06/09 and advised that if we did not attend or provide the medical evidence then they will have to make a decision in the employee’s absence.

    Because of the above pressure we decided to send a copy of the draft report via email to the employer on 04/09. We also attached a letter advising that we were attaching the draft report in good faith but that it was just that, a draft report. We also detailed the amendments we requested form the hospital.

    At short notice we managed to get a detailed report from Jane’s occupational therapist on the 05/09. In brief the report was very positive, praising Jane’s attitude and expressed how much progress she has made since being home. The OT report explained that they have done some cognitive tests and on most tasks Jane was within normal limits with the exception of a couple of tests where Jane was borderline or below average. The OT report did explain however that Jane’s ability to complete the task was not an issue it is just that in those tests the time taken to complete them was longer than normal. The OT report advised Jane was able to read, write and use a computer. The OT report suggested that they saw no issues with Jane starting to explore a staged return to work in 4 - 6 weeks’ time, starting at 2-3 mornings a week and then building up. The OT also advised that they were very happy to be contacted for further information or clarification and would work with all parties to get Jane back to work and assist while working.

    We attended the meeting on the 06/09 and the meeting appeared to go well. Jane answered all questions honestly and stressed her determination to get back to work as soon as possible, starting off a few mornings a week as advised by her OT’s but would like to build up to full time as soon as she could. It was mentioned that since Jane has been off sick the business has had a change around and Jane's job title and job description had been changed. Prior to the change there were some responsibilities that were shared however since the job change, these responsibilities were no longer shared and thus this could make it more difficult for Jane to return to the job.

    The employer sent a letter dated 12/09 advising that they were dismissing Jane. In brief, they have done so on the following grounds:

    (1) They had to take on a new member of staff several months ago who essentially replaced Jane. "With all duties now covered there is no requirement in the business for a part time role unless it was a job share and that is not on offer at the moment. In any event a job share would still require travel". Note: Although the job is predominantly office based there is a small amount of travel required once a month or so. In the meeting we advised that Jane would not be able to do this initially however as she is making great progress we did not foresee this being an issue in the near future, perhaps by the end of the year. This would possibly mean that someone else could help with the travel part for the following few months.

    (2) They pulled up a small part of the OT report which states that Jane’s ability to complete tasks based on visual instructions as "below average". The OT report however advised that although that is the case "she managed well with following instructions, the time it took her to complete these brought the overall performance down, is it worth noting that her ability to perform these tasks was NOT impaired” The OT went on to advise that "given the appropriate time to complete tasks and implementation of strategies to support I would recommend that Jane begins to explore the successful return to work."

    (3) The draft report we supplied in good faith advised that recovery takes place over 18 - 24 months. The employers response was simply that "the business is simply unable to wait this long". It is worth noting that this has been pulled from the draft medical report we supplied in good faith and this is also a point that we raised in our amendment request as being very vague. If they waited for the official report this would have been expanded upon. It is worth noting, that even though recovery can take this long, Jane is working very hard and is improving at a very rapid rate and the OT have themselves advised that Jane is ready to return work in a staged manner starting very soon.

    They have offered us the right to appeal in writing by 19/09.

    I don’t believe that the employer has given Jane a fair chance to return to work. The first contact Jane had from them was the email and letter (both sent 31/08). They did not wait for the official medical report but instead pressurised Jane to send them the draft copy meant for her eyes only. They changed Jane’s job title and description at some point during her sickness however they have never advised her of this. They have themselves admitted they have taken on a member of staff who replaced her and now that all duties covered they don’t have the need for her. The Occupational Therapist whom I would have thought carries the most weight in these situations has advised that they believe Jane is fit to start to return to work.

    Any advice you have on this matter will be most gratefully received.

    Thank you
    DD
Page 2
    • Valli
    • By Valli 14th Sep 18, 10:43 PM
    • 20,633 Posts
    • 234,446 Thanks
    Valli
    One thing that you may not know, and nobody has mentioned in this thread - your wife was accruing holiday all the time she was off sick. This is one of the reasons that employers can't afford long term sickness, but you should ensure that you are paid whatever holiday pay you are due when your wife receives her final pay.

    (I'm afraid I agree that the employer has been reasonable.)
    Originally posted by jobbingmusician
    erm...post 14?
    "I would like more sisters, that the taking out of one, might not leave such stillness" Emily Dickinson
    Janice 1964-2016

    Thank you Honey Bear
    • jobbingmusician
    • By jobbingmusician 14th Sep 18, 10:45 PM
    • 19,251 Posts
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    jobbingmusician
    Nice one. Must improve my skim reading skills!
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    • PersianCatLady
    • By PersianCatLady 15th Sep 18, 1:36 AM
    • 579 Posts
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    PersianCatLady
    The company are well within their rights to dismiss Jane and I think it is best that she accepts that as soon as possible.

    As awful as it sounds, the fact that she has been to hell and back is irrelevant in terms of the law (I am sorry if this sounds mean).

    To be honest even though it doesn't seem like it now, I don't think that the employer has been unreasonable here. Unfortunately, especially with small businesses there comes a time when they have to dismiss people who are off sick.

    Another thing that may have causded the company to dismiss Jane now is that she will be coming up to her 2 year point in February and the employer may have wanted to avoid Jane gaining more (some) employment rights.

    I am sorry for Jane that this has happened to her and I hope she gets all the support that she needs at this time.
    • Masomnia
    • By Masomnia 15th Sep 18, 10:24 AM
    • 17,346 Posts
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    Masomnia
    I think this hangs on whether or not her condition would count as a disability within the meaning of the Equality Act, as she has less than two years service and can't claim ordinary unfair dismissal.

    If she were disabled under the Equality Act then I think she's got a better case, or at least some leverage, as dismissing her in the face of medical opinion that states that her being fit for work is imminent puts them on shaky legal ground imho.

    It's a big if, but I think it's worth investigating given the nature of what has happened and that her recovery is expected to be long and drawn out.

    The other factor is whether or not she wants to go through the stress of challenging it. It seems unlikely they will reconsider with no new information, so you would be pushing for a Settlement or alternatively have to go to Tribunal which is never pleasant. I actually think that if she is fit for work and she can explain that she had the accident and it prevented her working for a few months but she is now fit to return she probably won't have too much difficulty securing a new position. She needs to consider if it would be worth it, but you would need to seek advice to see a. if you have a case, and b. what you could reasonably expect if you did. It might be best to move on. Good luck anyway.
    “I could see that, if not actually disgruntled, he was far from being gruntled.” - P.G. Wodehouse
    • sangie595
    • By sangie595 15th Sep 18, 11:16 AM
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    sangie595
    I think this hangs on whether or not her condition would count as a disability within the meaning of the Equality Act, as she has less than two years service and can't claim ordinary unfair dismissal.

    If she were disabled under the Equality Act then I think she's got a better case, or at least some leverage, as dismissing her in the face of medical opinion that states that her being fit for work is imminent puts them on shaky legal ground imho.

    It's a big if, but I think it's worth investigating given the nature of what has happened and that her recovery is expected to be long and drawn out.

    The other factor is whether or not she wants to go through the stress of challenging it. It seems unlikely they will reconsider with no new information, so you would be pushing for a Settlement or alternatively have to go to Tribunal which is never pleasant. I actually think that if she is fit for work and she can explain that she had the accident and it prevented her working for a few months but she is now fit to return she probably won't have too much difficulty securing a new position. She needs to consider if it would be worth it, but you would need to seek advice to see a. if you have a case, and b. what you could reasonably expect if you did. It might be best to move on. Good luck anyway.
    Originally posted by Masomnia
    I disagree. She hasn't been prevented from working for a few months. It's nine months. Most of a year. And she isn't going to be imminently fit for work. She might be fit to do 2 or 3 half days in several weeks - which does not constitute anything near fit for work. A disability almost certainly does exist here - but that is irrelevant because the employer has acted within the law and been reasonable. There is no evidence of disability discrimination here, and to "use" the fact of a disability as leverage to force a settlement on economic grounds might be possible, and benefit her - but it is very likely going to ensure that the employer takes a much more unsympathetic view of every person in similar circumstances in the future. Perhaps she, and you, don't care about that, and that's ok - but it does mean that other people bear the consequences of using disability as a mallet when it isn't warranted.
    • scd3scd4
    • By scd3scd4 15th Sep 18, 12:09 PM
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    scd3scd4
    I have to read threads like this to appreciate there are still companies with decent benefits.


    Just checked my CBA..........65 weeks full sick pay............(I have done 20 years)


    Maximum 78 weeks full sick pay!
    • LilElvis
    • By LilElvis 15th Sep 18, 12:25 PM
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    LilElvis
    I have to read threads like this to appreciate there are still companies with decent benefits.


    Just checked my CBA..........65 weeks full sick pay............(I have done 20 years)


    Maximum 78 weeks full sick pay!
    Originally posted by scd3scd4
    This employer consists of two owners plus three staff. Paying for the sick employee plus temporary cover, likely at a higher rate, could well have financially broken them. As it is they've paid £2,500 in SSP, muddled along for several months, had to recruit a new staff member and have also paid for the advice of an HR specialist. I would say they've been pretty fair to an employee with one year of service and no guarantee that they will ever be able to return to fulltime working in the long term.
    • scd3scd4
    • By scd3scd4 15th Sep 18, 1:27 PM
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    scd3scd4
    This employer consists of two owners plus three staff. Paying for the sick employee plus temporary cover, likely at a higher rate, could well have financially broken them. As it is they've paid £2,500 in SSP, muddled along for several months, had to recruit a new staff member and have also paid for the advice of an HR specialist. I would say they've been pretty fair to an employee with one year of service and no guarantee that they will ever be able to return to fulltime working in the long term.
    Originally posted by LilElvis



    Not really my point. It was just a general reflection, some times we all forget that life outside our own experience can be very different.


    Do you share the same view on pregnant woman?
    • LilElvis
    • By LilElvis 15th Sep 18, 2:41 PM
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    LilElvis
    Not really my point. It was just a general reflection, some times we all forget that life outside our own experience can be very different.


    Do you share the same view on pregnant woman?
    Originally posted by scd3scd4
    Totally different situation to this one. Maternity leave has a maximum end date and the employer has advance notice to allow them to plan for it, in terms of cost, how to allocate their duties and to allow an orderly handover.
    • scd3scd4
    • By scd3scd4 15th Sep 18, 3:17 PM
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    scd3scd4
    I never said it was the same, I just asked a question. It still has a significant cost to any very small business.
    Last edited by scd3scd4; 15-09-2018 at 3:31 PM.
    • marliepanda
    • By marliepanda 15th Sep 18, 4:13 PM
    • 6,582 Posts
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    marliepanda
    I have to read threads like this to appreciate there are still companies with decent benefits.


    Just checked my CBA..........65 weeks full sick pay............(I have done 20 years)


    Maximum 78 weeks full sick pay!
    Originally posted by scd3scd4
    What would be your companies sick policy on an employee of under a year? That’s the best way of comparing.
    • scd3scd4
    • By scd3scd4 15th Sep 18, 4:30 PM
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    scd3scd4
    What would be your companies sick policy on an employee of under a year? That’s the best way of comparing.
    Originally posted by marliepanda

    1 year 4 weeks.
    1-5 years 13 weeks.


    I understand small to medium companies are in a different situation. But I was just being selfish and thinking of my own.
    Last edited by scd3scd4; 15-09-2018 at 4:39 PM.
    • marliepanda
    • By marliepanda 15th Sep 18, 4:50 PM
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    marliepanda
    1 year 4 weeks.
    1-5 years 13 weeks.


    I understand small to medium companies are in a different situation. But I was just being selfish and thinking of my own.
    Originally posted by scd3scd4
    So really your company doesn’t offer very much more than the situation the OPs friend is in. It’s only your length of service which makes it so positive in comparison.
    • scd3scd4
    • By scd3scd4 15th Sep 18, 5:09 PM
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    scd3scd4
    So really your company doesn’t offer very much more than the situation the OPs friend is in. It’s only your length of service which makes it so positive in comparison.
    Originally posted by marliepanda

    Like I already said again, I was making a selfish comparison. Its allowed. lol


    That said don't go assuming all companies are throwing around 13 or 78 weeks full pay. let alone many other decent benefits.
    • JayRitchie
    • By JayRitchie 15th Sep 18, 6:29 PM
    • 43 Posts
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    JayRitchie
    I'm sorry to hear your wife has had such a hard time. I don't believe that her employers have been at all unfair. Given the size of the company they seem to have made a really large effort to keep a job available for her to return to for far longer than most small employers could, or would have.

    I don't think its good for either you or her to feel badly treated - its not a healthy attitude. Far better to think 'Jane had not been there long at all but was valued enough that they kept her on the books for nine months with all the difficulties that created for them.'
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