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  • FIRST POST
    • diesel_doglet
    • By diesel_doglet 14th Sep 18, 12:15 PM
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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 The report was very vague, 5 weeks out of date and did not give much information as to when Jane could return to work or how she would improve.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 1
    • Comms69
    • By Comms69 14th Sep 18, 12:29 PM
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    Comms69
    • #2
    • 14th Sep 18, 12:29 PM
    • #2
    • 14th Sep 18, 12:29 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 - 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
    Originally posted by diesel_doglet


    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
    • unforeseen
    • By unforeseen 14th Sep 18, 12:31 PM
    • 3,104 Posts
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    unforeseen
    • #3
    • 14th Sep 18, 12:31 PM
    • #3
    • 14th Sep 18, 12:31 PM
    Employed since Feb 2018 and off sick for 9 months?

    Those figures don't add up.
    • tazwhoever
    • By tazwhoever 14th Sep 18, 12:34 PM
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    tazwhoever
    • #4
    • 14th Sep 18, 12:34 PM
    • #4
    • 14th Sep 18, 12:34 PM
    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.
    Last edited by tazwhoever; 14-09-2018 at 12:37 PM.
    • Comms69
    • By Comms69 14th Sep 18, 12:40 PM
    • 5,555 Posts
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    Comms69
    • #5
    • 14th Sep 18, 12:40 PM
    • #5
    • 14th Sep 18, 12:40 PM
    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.
    Originally posted by tazwhoever


    *morally fair. Because to be honest 18 months is very generous!
    • diesel_doglet
    • By diesel_doglet 14th Sep 18, 12:42 PM
    • 937 Posts
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    diesel_doglet
    • #6
    • 14th Sep 18, 12:42 PM
    • #6
    • 14th Sep 18, 12:42 PM
    Employed since Feb 2018 and off sick for 9 months?

    Those figures don't add up.
    Originally posted by unforeseen
    Apologies, should have proof read - Feb 2017 was when she started.
    • Comms69
    • By Comms69 14th Sep 18, 12:45 PM
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    Comms69
    • #7
    • 14th Sep 18, 12:45 PM
    • #7
    • 14th Sep 18, 12:45 PM
    Apologies, should have proof read - Feb 2017 was when she started.
    Originally posted by diesel_doglet
    So she has no employment rights.


    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.
    • diesel_doglet
    • By diesel_doglet 14th Sep 18, 12:50 PM
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    diesel_doglet
    • #8
    • 14th Sep 18, 12:50 PM
    • #8
    • 14th Sep 18, 12:50 PM
    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
    Originally posted by Comms69
    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?

    DD
    • elsien
    • By elsien 14th Sep 18, 12:51 PM
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    elsien
    • #9
    • 14th Sep 18, 12:51 PM
    • #9
    • 14th Sep 18, 12:51 PM
    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.
    • Comms69
    • By Comms69 14th Sep 18, 12:55 PM
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    Comms69
    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
    Originally posted by diesel_doglet

    Legally there's nothing to lean on in this case
    • nicechap
    • By nicechap 14th Sep 18, 1:06 PM
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    nicechap
    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.
    Last edited by nicechap; 14-09-2018 at 1:30 PM.
    “Never argue with an idiot. They will only bring you down to their level and beat you with experience.” - George Carlin
    • Gavin83
    • By Gavin83 14th Sep 18, 1:08 PM
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    Gavin83
    Was the accident at work or elsewhere?

    Under two years employment she has very few rights anyway. Probably best to spend her time recovering and then finding alternative employment.
    • tazwhoever
    • By tazwhoever 14th Sep 18, 1:09 PM
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    tazwhoever
    *morally fair. Because to be honest 18 months is very generous!
    Originally posted by Comms69
    Thanks, I guess some employers like mine knew what brain surgery is and the impact it has on a person.
    • Undervalued
    • By Undervalued 14th Sep 18, 1:32 PM
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    Undervalued

    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?
    Originally posted by diesel_doglet
    Because, unless she has a disability (for employment law purposes) they are under no legal obligation obligation to "assist you getting back to work". Even with a disability they are only obliged to make "reasonable adjustments".

    Aside from any possible rights should her current medical condition amount to a disability (which seems unlikely) with less than two years employment she can be dismissed for no reason at all or for any reason providing it does not amount to unlawful discrimination. Again, no suggestion of that in what you have said.

    Even if she had two years service the employer would almost certainly be within their rights to dismiss under these circumstances providing they followed proper procedure. Without two years service it is a moot point if they have followed proper procedure or not as there is no redress.

    She is however entitled to a minimum of one weeks notice plus payment for all accrued holiday (roughly 1 day for each two weeks of employment).
    Last edited by Undervalued; 14-09-2018 at 1:38 PM.
    • Undervalued
    • By Undervalued 14th Sep 18, 1:41 PM
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    Undervalued
    Was the accident at work or elsewhere?

    Under two years employment she has very few rights anyway. Probably best to spend her time recovering and then finding alternative employment.
    Originally posted by Gavin83
    That makes no difference to the employer's right to dismiss.

    Obviously if they do dismiss and the accident was found to be their fault it would increase the amount of any compensation awarded.
    • sangie595
    • By sangie595 14th Sep 18, 1:59 PM
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    sangie595
    Thanks, I guess some employers like mine knew what brain surgery is and the impact it has on a person.
    Originally posted by tazwhoever
    That really isn't a fair comment. Your employer might have the capacity to manage a long absence. Not everyone does. Nine months is exceedingly generous; and most of those "cushy" public sector employers start dismissal at 12 months. If your employer can manage without you at work for 18 months you are very fortunate. Or easily replaceable!

    I have to agree with everyone else I'm afraid. It's terrible that she's been through this accident and remarkable that she's recovered so well. But the employer had acted in a legally fair way, and, to be honest, better than the vast majority would have. In terms of legal fairness, given a correct process which had been completed, after nine months no tribunal would rule it other than fair. I raise that grew people like it when this is pointed out, and I don't mean it to be horrible to you - but employers employ people to be in work and to produce work for them. In the end, even the best employer is an employer not a charity or a social work department; and they won't wait on a return at "your" pace, but at what suits them. I work for an absolutely fabulous employer who would wait an awful long time - people have had up to two years on sick! But even they won't wait for ever, and two years is the longest they've gone.

    As for changing the job description, sorry, but things move on; and here's the frequent "devil you do, devil you don't" issue that we see here all the time. Half the posters complain about the lack of contact from their employer. The other half complain about the contact!

    And I doubt the employer will feel any comfort in her being possibly able to return a bit in several weeks. That's a very stretchy piece of long string! I can't imagine how much effort it will take to return to work after something like this. I am returning on Monday for a phased return after three months sick ( and an employer who is very good, and I have worked for for 30 years), but last week I went and did a half day on something I needed to be at. A half day. It nearly killed me!!! And I am by no means anywhere near the position your wife has been through. I rapidly reevaluated the amount of time I'd be in and the length of the phased return! I suspect that it will be a lot harder than you or she imagines. And given my own experience of OT and physio - significantly harder than they think!

    If you feel that you have to appeal - and by that I actually mean if she feels she has to - then do it. But I wouldn't be very hopeful of the outcome. Regrettably, I think the employer had been relatively fair, and I can see their point of view. More to the point.... A tribunal would see their point of view, and in the end, it's a tribunals definition of fair that matters most.
    • p00hsticks
    • By p00hsticks 14th Sep 18, 3:19 PM
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    p00hsticks
    She did have sick pay - SSP for 6 months. Nothing toppe dup by employer though.
    Originally posted by diesel_doglet

    I stand to be corrected, but I believe that the cost of SSP is met directly by the employer.
    • Undervalued
    • By Undervalued 14th Sep 18, 3:33 PM
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    Undervalued
    I stand to be corrected, but I believe that the cost of SSP is met directly by the employer.
    Originally posted by p00hsticks
    You are correct. Until a few years ago smaller employers could indirectly reclaim the cost but not now.
    • Gavin83
    • By Gavin83 14th Sep 18, 4:43 PM
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    Gavin83
    That makes no difference to the employer's right to dismiss.

    Obviously if they do dismiss and the accident was found to be their fault it would increase the amount of any compensation awarded.
    Originally posted by Undervalued
    I didn't suggest it did, hence the rest of my post that said exactly that. The primary reason I asked was for your second paragraph. I was also curious if they'd been anymore generous because they blamed themselves, even a bit.
    • jobbingmusician
    • By jobbingmusician 14th Sep 18, 10:37 PM
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    jobbingmusician
    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.)
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