Hi I'm new here but am looking for some advice and hope someone might be able to help.

I'm a Band 7 Mental Health nurse and have been employed by the same Trust for 26yrs.I have been at risk of redundancy since Dec 2009 due to service redesign. The hospital I managed for over 10 yrs closed and since then I've been given temporary roles whilst awaiting redeployment.

In the meantime I have also been off sick for the last 6 months after undergoing double knee replacement surgery. I was hoping that I would be redeployed into a more substantive role when I returned to work a couple of weeks ago.

I had a capability review meeting last week and was told that there are no jobs available and if they are unable to find me a suitable post before my next review meeting in 6 weeks time then they will start the process of redundancy.

They have also said that if they find me a job that I am unable to undertake due to my recovering knees and it is therefore deemed unsuitable I may be dismissed under ill-health capability.There are several roles that would be unsuitable due to my current physical limitations.

It is looking very unlikely that a suitable position or any position at all will be found. This seems to be happening to several other people .

I have tried to make contact with my union on several occasions without success and feel shocked that this is happening to me.

I do not wish to be made redundant or dismissed due to capability but there does not seem to be anything I can do about it.

I would appreciate some advice as to whether it would be in my best interest to pursue ill-health capability as an exit plan and then ill-health retirement rather than redundancy. I'm not sure how far I would get with an ill-health retirement application and not sure of the process.

I would also appreciate some advice around the redundancy process in terms of how long it takes and how much notice I would get/would have to work out

I've arranged to take outstanding leave in 2 weeks time that will enable me to stay off until the meeting as am finding it difficult to stay positive at work.

Thanks in advance for any comments /advice

suggest you speak to union or acas.

Well the bad news is you can be dismissed under ill health if there are no jobs available or jobs which could be adjusted so you could fulfil them. The first question would be are there jobs you can do, you know this we don't as i can only guess and if you've had both your knees done then i assume your not walking or mobile at the moment, the next question is when will you have recovered enough to be able to undertake your substantive role. (or are those days now over?)

You actually have 2 issues here, the medical and the employment as redundancy does not come into ill health (unless the nhs have this as part of their health related procedures)

http://www.nhsbsa.nhs.uk/Documents/Pensions/Ill_health_Rtirement_Factsheet.pdf

take a look at this, it sets out what the nhs will do over ill health retirement (note NOT redundancy) if you are a member of the pension scheme

http://www.southtees.nhs.uk/foi/HRPlongtermabsence.pdf

this also gives you an idea of what the procedure should be when undertaking an IHR although there are a couple of paragraphs in there i found interesting in legal terms

Your next steps are to pursue your union, you didn't pay them to not be available when you need their services, find the local branch for your town, if you don;t get anywhere with them go to the regional office (phone email) and demand that you receive appropriate representation.

I would also be very wary of your HR and what they are doing, if i was you first thing monday morning i'd be emailing them asking for copies of all minutes in relation to your case and a copy of their IHR policy. In addition if you were entitled to IHR and this was a substantial cost to them in releasing your pension be careful they don't try to take you down the redundancy route to save themselves some money.

Bottom line is can you do the job (or available jobs) once you recover, if not you will need to get your head around the fact at some stage you will be dismissed for medical incapacity, just make sure you get what your entitled to if so.

The last thing to note and i know it's a cardinal sin to ask is your age, this has a fundental link with an IHR review in determining not only access to pension but also the possibility of undertaking gainful employment in the future e.g if your 34 there's much more chance of you working again irrelevant of your knees than there is if your 64

Hi and thanks so much for your reply and helpful advice.

I will contact the union again and following further consideration I think I should find out about IHR and whether I would be felt eligible as I have to say I am concerned about being dismissed and then being considered in-eligible by pensions dept. I would be interested in knowing how the pensions dept make their decision and how likely it is that IHR would be agreed.

I'm nearly 46 and have been continuously employed by the same organisation since 1985.

I have Mental Health Officer status and planned on retiring at 55.

My substantive post disappeared and I have been "at risk" for 18 months covering temp roles or being off sick following knee ops. My latest period of sickness absence was 6 months but I was well into half pay as had 4 ops in 12 months.

Mental Health roles at my grade generally have a risk of violence and aggression attached to them and I am unable to undertake a role in an acute setting with clinical contact which narrows the field somewhat. There are no available roles at all at the moment, but a clinical role would be felt to be unsuitable currently as I have probs crounching and kneeling and probably always will - OH and my consultant have both said this. OH have suggested work trials if posts are identified but didn't mention IHR.

It never occurred to me that Redundancy would be a cheaper option for the Trust. I've always had good faith in the organisation and the people who work within it and have been a manager for many years. I felt very much at the review meeting that redundancy would be the outcome mid july if no jobs are available by then, regardless of my ill-health capability.

I remain shocked and stunned as when I returned from work I had hoped for at least temporary redeployment not a discussion about redundancy.

It looks like I could apply for IHR tier2 but once I go down that road I could lose any chance of redundancy and not have my pension agreed which would be a far worse outcome.

I had hoped I could manage this myself but now realise that I will need some representation.

Thank you again for your help and prompting me to wake up to the bigger picture.

Chi

I am trying to sort out a NHS Pension for my wife who agreed with her NHS employer to retire on Ill Health Grounds. The first thing you need to understand that your employer does not have a say in whether to award you a pension or not, that is entirely in the remit of the NHS Pensions agency. So however you have left the employ of the employer is irrelevant to pension considerations. Did you elect to go into the 2008 scheme? You can find out by asking your pay department, they will direct you to a number that will give you projections.

You then apply to NHS Pensions for your pension, your employer will probably support you under your circumstances. You will find 2 tiers. Essentially tier 1 is being unable to undertake NHS duties. Tier 2 is unable to undertake "work of like duration" so you need to persuade them that you cannot work in the general work population doing ANYTHING in the hours you normally worked in the NHS. It is a high bar to jump and many fail and so only get Tier 1.

You need evidence of your health which means doctors OT's occupational Health Doctors etc writing in support of your need for a pension. Here are some links.

http://www.nhsbsa.nhs.uk/Pensions/896.aspx

You don't say who was responsible for your injury. If it is just natural wear and tear then that is it. But if there is a suggestion that the employer is in some way responsible eg an accident on the ward, being involved in incident over many years then TIA may be payable once your pay drops below 85% of normal income. The employer will fight tooth and nail NOT to pay this as it comes out of the employers budget, whereas pension is centrally managed. TIA converts to Permanent Injury Benefit when you retire but again they fight it because it still comes out of their budget. Pension is separate to TIA and PIB. You can in theory get both but seldom do.

http://www.nhsbsa.nhs.uk/795.aspx

http://www.nhsbsa.nhs.uk/877.aspx

Hi and thanks for your reply.

I'm still under the old rules for the pension scheme and didn't sign up for the 2008 change

My knee problems are a result of OA and being very tall! - it is wear and tear and not related to a work injury.

I'm not in a position to do direct care due to kneeling etc but if there was a low risk post involved in governance or project work or even some of the Team Manager jobs I could do them. My substantive post no longer exists so that leaves with a contract but no place in anyones budget. I doubt if it would be agreed that I am unable to work anywhere certainly at this stage as I am still in recovery but the decision to unload me is being made in a few weeks. I will see my consultant in a month and could revisit OH for a further opinion.

Wishing you all the best for your wife's pension application and thanks for the links

Chi

Hello there.

You've had some good advice from the guys.

From the little I've read on the NHS scheme for people on the forum, there is a section that allows you to be paid while an illness or disability is stopping you working, either your 'normal occupation' or any occupation, as papasmurf says.

The thing to watch with most pension schemes is whether the illness is likely to be permanent, ie up to your retirement age. In other pension schemes, this would be called sickness benefit or similar, but I believe the NHS scheme calls it a pension, even though it could be temporary. If you don't think this disablility will be forever, [or the pension people don't], then you need to discuss if you claim the temporary pension.

Normally, if someone has a terminal illness or something they will never recover from, they would apply for 'permanent' retirement. I don't know if this is the case with you, it sounds as if it may not be.

I hope this makes sense, just trying to highlight the pitfalls. I've never worked in the public sector and the schemes are very different from ones in private sector.

I hope you get a good outcome.

My best, HB

Thanks HB

Havn't heard of that and will try and find out about it.

Either way it looks like the Trust wants to make a decision about my contract in 5 weeks time so I need to consider the diff poss outcomes and try and work out if I can have any control of which way it will go and if HR will be fair.

I'm finding the whole thing very upsetting so need to stay clear, informed and as focused as I can

Thank you to all of you for your helpful comments and info

Chi

This may be a long shot for you and indeed you may not have the resources / savings to fight for as long as it takes to win or you may not want to but there is always the possibility that you could fight the decision to "unload" you is probably discriminatory. Knee replacements, if they work and are done without incident, and you do the rehabilitation exercises should enable you to undertake your normal job. I realise that you say that your post no longer exists but I suspect that this may have been engineered not to exist quite possibly whilst you were off sick. If you have an open ended contract (?) and the post genuinely was made redundant, you should have been able to shift posts relatively easily ie they would have found you a post even if it was a grade lower. If jobs exist then existing staff should be allowed to fill them.

So you need to read up on the Equality Act 2010. You are now disabled, even if you get back to walking and walking well, I am sure that you would be able to satisfy the criteria that says that normal activities of daily living have to be affected to be subject to the Act. So if you are subject to the act then dismiss you on the grounds of being incapable of doing your job, especially if the employer is advertising jobs, before you have a chance to rehabilitate and make yourself capable to endure the rigors of work, then it could in my view be tantamount to discrimination. Check to see if you have legal protection insurance because if your union is the RCN then they really don't like to take employers on in discrimination cases....... don't get me started on that aspect, trust me just see if you have legal protection, normally in Household contents cover.

The Equality Act talks about "policies customs and practice." The Capability procedure will be a written policy and I have no doubt you have read it cover to cover. The states that PCP's are subject to reasonable adjustments. If you have been verbally, or better, told in writing that a capability decision is to be made in a few weeks then you need to act fast. First you need to enact the employer's Grievance Policy, consult your union and try and get them to come on board because I might have done them a disservice and they might pull out all the stops for you. I these type of disputes the local rep is probably not trained in this area of law so you might have to go to regional office. Get a copy of the GP, they are pretty much standard in the NHS. Skip stage 1, because it is irrelevant to you at this stage. Stage 2 needs to be in writing. It is important that one of your grievances is Disability Discrimination. If you allege that and they take no notice of your grievance and dismiss you, then that is an act of Victimisation and even if the original discrimination is not proved, the chances are that Victimisation will be. It is the fact you start the GP and allege that discrimination that ups the stakes for the employer.

Read what constitutes victimisation because when you see 'detriments' happening to you because you are fighting the unfairness of being dismissed for capablity before you have the chance to prove you are capable that is definitely worth fighting for. You don't have anywhere else to go.

Be aware though the employer will not like it and fight like anything to make it go away. Expect dirty tricks.

You should also be looking at DLA ESA and maybe some other benefits too. On the sick notes make sure you copy them and send the copy to the DWP, the employer sits on them and you don't get your benefits.

Think Blue Badge.

Think social services OT referrals to register your disability, you may get a freedom pass if you live in London and may needs aids etc

If you are a wheelchair user there are council tax reductions, but I am not sure if that is time limited

HR fair !!!! Lol

HB... don't think chi is entitled to the pension benefit you describe. It is the TIA and PIB that I mentioned. The criteria has to be as an " injury or disease wholly or mainly attributable to their employment." and OA is not that as it is a degenerative condition.

HB... don't think chi is entitled to the pension benefit you describe. It is the TIA and PIB that I mentioned. The criteria has to be as an " injury or disease wholly or mainly attributable to their employment." and OA is not that as it is a degenerative condition.

Hi papasmurf. As you know, I get a bit lost in the terminology of public sector schemes, especially when they talk about 'pensions' that don't carry on for life.

Out in the real world [oops, duck behind the wall icon needed], 'pensions' are paid for life as far as I'm aware. An employee who is unable to do their job through illness could receive some sort of benefit from a sickness or disability insurance and this would stop if a) the employee recovered and went back to work or b) was moved onto a pension for the rest of their life because the medical condition was permanent.

I have no idea what the public sector name or acronym for the above would be, total mystery to me I'm afraid, but you seem to be doing pretty well.

I just thought it was worth mentioning the part about the medical condition being temporary or permanent because I'd expect this to be something the pension people or trustees would look at.

My best, HB

HB our experience was 6 months full pay, 6 months half pay, then the fight was on to prove the injury was the fault of the employer to get TIA. As you know we did and that was 'wot won it' as the Sun headline would say. We would have had PIB too but for the fact we negotiated it away. Might have got that bit wrong in hindsight but hey ho. Even if I say so myself I became quite the expert on TIA !! I am doing pretty well on the pension bit too. I am so modest!!

Wasn't it something like 'clever and modest and misunderstood' in the satyrical Flanders and Swan song? I'm sure you are, keep going with the thread.

HB x

Hi and thank you all so much for your helpful advice, I feel overwhelmed with your advice but more informed and able to stand up for myself now I have started to get over the shock that there isn't going to be job for me. I really thought there would be a post identified by the time I got back to work as they had 6 months to find something.

My job disappearing had nothing to do with my knee probs - my team of 40 became at risk as the hospital and small community service was closed or redesigned as they called it. I managed to ensure that all my staff were redeployed within a short time frame and I also decommissioned the building. I was then given short term jobs to do while they were looking for a job for me. There are very few posts at my grade anyway and none at the next grade down became available either. In the meantime I started having knee ops - 4 ops in 9 months and to and froed from work. That was until I had both knees replaced 6 weeks apart which meant I was off for the last 6 months .

I saw OH before returning and they do consider that I satisfy conditions of Equality Act and have some limitations. However they also expect me to recover by end of this year although I may have permanent problems with kneeling and crouching.

I have an exemplary work record (quote from my p-file!) and have always believed I was well thought of but there have been so many changes that I don't think that counts for anything anymore. I didn't get the impression that they would be dismissing me under ill-health at the next meeting but that they do want to pursue redundancy if no jobs at all become identified by then. They didn't seem to think any jobs were in the pipeline at all. So I am left still thinking that they plan to make me redundant in July rather than dismissing me if there are no jobs at all available by then, regardless of my ill-health capability.

I don't like either option and want to stay at work but still can't weigh up if I should argue for ill-health in order to apply for my pension.

It's all so confusing and overwhelming and my job has been my life for 26 years the implications of which I can't even begin to think about yet.

On the positive side my f-in-law who is 91 and has advanced dementia (and lives with me) is sitting next to me watching the golf at Wentworth and thinks he's in the competition! He needs more looking after than ever now and became very unwell when i was off sick and he was in respite so maybe losing my job is divine intervention and will give me the time to look after him.

Think I need to revisit OH, speak to the union and ask HR for some clarification about the agenda for the meeting in July

Thanks again for your support

Chi

Hi there - I have read this thread with interest as it is a carbon copy of something that is currently happening to my partner. I wondered how your case was resolved and any advice?