Dismissal while on long term sick
diesel_doglet
Posts: 998 Forumite
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 The report was very vague, 5 weeks out of date and did not give much information as to when Jane could return to work or how she would improve.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
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
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Comments
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diesel_doglet wrote: »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 - 2017 surely, otherwise she literally never turned up to work?! 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. so she has had sick pay? 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. - irrelevant if it consists of 1 person or 1,000,000
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. - why did it take you 10 days?
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 - 2 days? 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. - it's a bit iffy; but certainly it's fairly reasonable, they've had an employee off for 9 months, they wanted an update and for some reason you delayed it massively.
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. - ok. The employer doesn't have to agree to any of this.
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. - and?
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". - if she cant do the job then that is that 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. - The employer does not have to agree to this.
(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." - See above
(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. - Irrelevant. They want someone there all the time not 3 mornings a week
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. - your belief is irrelevant 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. well had she refused and they made a decision that was 'legally' unfair she might have a case - see caveat below They changed Jane’s job title and description at some point during her sickness however they have never advised her of this. - and? 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. - the OT carries absolutely ZERO weight. Nothing. The employer can ignore everything and get their own OH assessment.
Any advice you have on this matter will be most gratefully received.
Thank you
DD
I'm assuming the date is wrong. But how long has she worked there?? If less than 2 years, forget it. If more than, get the employee handbook / policy and check they have done things correctly0 -
Employed since Feb 2018 and off sick for 9 months?
Those figures don't add up.0 -
DD - Sorry, I'm not knowledgeable to give advice on employment. But I agree with you that you wife hasn't been given a fair chance to return to work. I remember, when I had my neurosurgery the employer gave me 18 months to return to work.0
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tazwhoever wrote: »DD - Sorry, I'm not knowledgeable to give advice on employment. But I agree with you that you wife hasn't been given a fair chance to return to work. I remember, when I had my neurosurgery the employer gave me 18 months to return to work.
*morally fair. Because to be honest 18 months is very generous!0 -
unforeseen wrote: »Employed since Feb 2018 and off sick for 9 months?
Those figures don't add up.
Apologies, should have proof read - Feb 2017 was when she started.0 -
So she has no employment rights.diesel_doglet wrote: »Apologies, should have proof read - Feb 2017 was when she started.
I'm not sure if this injury would qualify as a disability or not; but I don't think it's going to make much difference.
Sorry.0 -
I'm assuming the date is wrong. But how long has she worked there?? If less than 2 years, forget it. If more than, get the employee handbook / policy and check they have done things correctly
Thank you for your reply. I have replied below to your points.
The date was wrong - sorry it was 2017.
She did have sick pay - SSP for 6 months. Nothing toppe dup by employer though.
It was difficult to contact the hospital as we needed to do it while we were both together and regularly we would either get busy or voicemail. The doctor was also away on leave for a number of weeks so we were advised to email the details in the end.
Yes we had 2 days notice from when we received the letter on the Tuesday to the meeting on the Thursday.
Why doesn't the employer need to take into consideration the OT report? Surely they have some responsibility to assist you getting back to work?
Note: They have not asked any Occupational therapist or any other medical person to assess Jane. The only assessment was a meeting with this HR person.
Can the employer just change an employees job description without consulting them or even writing a letter advising it will be done / has been done?
At the time they took on the new member of staff they had made no contact with us whatsoever to even determine timescales etc. Is that just?
DD0 -
Reasonable adjustments still have to be viable for the business to put in place.
Your wife would be starting off on two or three mornings a week for an unspecified length of time. She will initially need a higher level of instruction and take longer for perform tasks, even if the tasks themselves are completed well.
For a small business that may well be unsustainable, even if it feels unfair from your side of the fence.
They kept her job open pending the OT reports. But the OT is looking at it from your wife's perspective, not from a business/financial one. I have to be honest, I'm not surprised they said no.All shall be well, and all shall be well, and all manner of things shall be well.
Pedant alert - it's could have, not could of.0 -
diesel_doglet wrote: »Thank you for your reply. I have replied below to your points.
The date was wrong - sorry it was 2017. - Yep got that.
She did have sick pay - SSP for 6 months. Nothing toppe dup by employer though. - that's lawful, she got what the law requires
It was difficult to contact the hospital as we needed to do it while we were both together and regularly we would either get busy or voicemail. The doctor was also away on leave for a number of weeks so we were advised to email the details in the end. - I feel that 10 days was excessive, this was a priority
Yes we had 2 days notice from when we received the letter on the Tuesday to the meeting on the Thursday. - Yes, 2 whole days. that is fairly reasonable
Why doesn't the employer need to take into consideration the OT report? - Because it carries zero weight. The employer hires an employee to do a job, not half a job Surely they have some responsibility to assist you getting back to work? - absolutely none, unless this qualifies as a disability. From what you describe it doesn't seem that way
Note: They have not asked any Occupational therapist or any other medical person to assess Jane. The only assessment was a meeting with this HR person. - They don't have to. But they can choose to
Can the employer just change an employees job description without consulting them or even writing a letter advising it will be done / has been done? - yes
At the time they took on the new member of staff they had made no contact with us whatsoever to even determine timescales etc. Is that just? - yes, that's fine
DD
Legally there's nothing to lean on in this case0 -
Hi,
Firstly I'm sorry to hear about your wife's accident but I'm pleased she's on the road to recovery. It must have been a big strain on you too, and I expect having her home is a relief as well as extra work from you.
As others have suggested, under 2 years service doesn't bestow many employment rights on your wife. For such a small firm, they seem to have been proficient. You haven't mentioned anything about contact from work during the first 6 months whilst off work - were they led to believe she would be back sooner? There may or may not have been some procedural problems according to the account you have posted but without sight of the company's attendance policy - if there is one, its not appropriate to speculate.
However, your wife should ask herself, what is it that she wants to happen now? She's not had any sick pay for what? 10 weeks? What time frame was she expecting to return in? That's still no more sick pay then too. You may want to ask on the benefits board what support is available for her.
If its another 6 or 12 months before being ready for work, then perhaps start looking for new work then.Originally Posted by shortcrust
"Contact the Ministry of Fairness....If sufficient evidence of unfairness is discovered you’ll get an apology, a permanent contract with backdated benefits, a ‘Let’s Make it Fair!’ tshirt and mug, and those guilty of unfairness will be sent on a Fairness Awareness course."0
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