My brother was harassed and bullied at work and is been off work for work related stress.

He put in a grievance against the manager for that. Then his manager made his boss carry out the changes to his working days even though he told them clearly about childcare issues.

Unfortunately this work related stress and bullying and harassment at work caused him depression and severe stress lead to him developing paralysis symptoms in one side of body for which he got signed off.

The employers then persistently kept calling him in the name of welfare calls which his family told was affecting my brother as work was his stressor in his case. His work then kept insisting on home visits which again his family kept refusing as they believed it would aggravate his stress more but due to constant contacts he gave in and another manager conducted home visit.

This manager was polite but straight away after visit my brother's stress levels started rising and they got so worse couple of days later that he collapsed unconscious and had to be rushed to hospital. Doctors treating him suggested that was all down to high levels of stress due to his home visit.

His treating consultant at this stage gave in a letter to employers and this letter highlighted employers frequent contact was proving to be counterproductive.

Then a few months after work place people and managers from different departments started contacting him again inviting him to attend grievance hearings he put in. This derived further depression and schizophrenia.

His SSP ran out and due to financial stress and unprofessional attitude by ongoing contact of management he started thinking that management wants to fire him to cover other manager's job and due to all this he is at a mental stage where he is having hallucinations, zoning out moments and having self harm thoughts.

Despite all this his management has now written a letter informing his wife they want to carry out a long term sickness capability meeting, where they want to explore different avenues for his return to work such as redeployment etc and warned him that outcome of this meeting can be a dismissal.

Given his condition his wife approached his GP to express her fears how this letter may impact my brother's health and GP strongly suggested not to mention anything about this letter to my brother and ask employers to contact GP directly if they need any information on his health including his possible return to work.

His wife then offered his employers this option to contact GP or get Occupational Health opinion to determine his fitness to attend and or if this meeting can be delayed until he is in a state to deal with it. She also informed employers including HR about GP's advice.

His employers rejected all options and GP's advice and wrote again to his wife informing that they still want to go ahead with capability meeting quoting it is standard policy for long term sickness. She doesn't know what to do specially given his mental health state. AHe

Isn't carrying out meeting against Doctors and Consultant's advice knowing all this breach of duty of care?

Please help

The bad news is that any long term sick will instigate a capability meeting for which they can make you redundant, irrespective of the reason for that absence

Occupational health/GP is advisory only on the employer. If that report comes from a consultatnt then that will be different.

If the employer ignores any Occupational health/GP report and the employee suffers a substantial detriment then the employer can be held responsible under negligence

But our aim here is to avoid any damage. As mentioned his condition is quite fragile and hence Doctor strictly suggested to let employers know not to contact. I don't want this to be the last straw to Break camel's back.

Having been asking and getting some excellent advice myself on this matter for a Friend/colleague

Does the doctors sick note explicitly state no contact by the employer to the employee as in phone or personal contact?

You need to be sure

People such as Occupational Health can be used

Having been asking and getting some excellent advice myself on this matter for a Friend/colleague

 

Does the doctors sick note explicitly state no contact by the employer to the employee as in phone or personal contact?

You need to be sure

 

People such as Occupational Health can be used

There was a letter from Consultant that said "Ongoing contact with this work colleague will be counterproductive and perhaps be more appropriate if further communication occurred via Occupational Physician".

Doctors note doesn't state that but doctor has asked to tell employers to write to Doctor for further information. Occupation contact has already been suggested as an alternative but management decided to carry on with meeting instead.

The bad news is that any long term sick will instigate a capability meeting for which they can make you redundant, irrespective of the reason for that absence

 

Occupational health/GP is advisory only on the employer. If that report comes from a consultatnt then that will be different.

 

If the employer ignores any Occupational health/GP report and the employee suffers a substantial detriment then the employer can be held responsible under negligence

It wouldn't be redundancy. It would just be a dismissal on capability grounds. Redundancy is when a job is no longer required, and that is not the case here.

However, in the end the employer has to carry out this process - with or without him present. There are significant problems to his non attendance, both for him and for the employer. So if he isn't going to attend the meeting, the employer will probably want that in writing.

Being totally honest, he isn't going back to this job. Is he? So my advice would be, first see a solicitor to see if there is any case against the employer, and if not, just resign. Given the impact of this on him, I think that ending this now is probably best. No job is worth your health, and if fretting about going back to work or even attending a meeting has such a bad impact, then there is no point in trying to hold on.

It wouldn't be redundancy. It would just be a dismissal on capability grounds. Redundancy is when a job is no longer required, and that is not the case here.

 

However, in the end the employer has to carry out this process - with or without him present. There are significant problems to his non attendance, both for him and for the employer. So if he isn't going to attend the meeting, the employer will probably want that in writing.

 

Being totally honest, he isn't going back to this job. Is he? So my advice would be, first see a solicitor to see if there is any case against the employer, and if not, just resign. Given the impact of this on him, I think that ending this now is probably best. No job is worth your health, and if fretting about going back to work or even attending a meeting has such a bad impact, then there is no point in trying to hold on.

The question isn't if he wants to or doesn't want to attend meeting. Question is Is he in a state to attend meeting?

Real issue is that his condition is caused by work related stress and the remedy given by doctors said contact from employers was making his condition worse. They are not allowing him the right environment to recover by constantly harassing him!!

Are they likely to retire him on medical grounds in first meeting or there are likely to be more than one meeting?

The question isn't if he wants to or doesn't want to attend meeting. Question is Is he in a state to attend meeting?

Real issue is that his condition is caused by work related stress and the remedy given by doctors said contact from employers was making his condition worse. They are not allowing him the right environment to recover by constantly harassing him!!

Are they likely to retire him on medical grounds in first meeting or there are likely to be more than one meeting?

Why would they retire him on medical grounds? Does he even have such a benefit - not everyone does. And employers cannot make that decision, it is the insurers, and they will likely only agree if there is no chance of him ever working again at anything. They'd probably not be likely to agree that.

And I didn't say it was about what he wanted. It is about the fact that there is going to be such a meeting whether he attends or not. If he can't go, then at some point the employer will dismiss, and that will, in all probability, be an entirely fair dismissal in law. That isn't about what caused his illness - I'm not commenting on that here. It is about the fact that employers will not wait forever for employees to return to work. He had been off a long time, several months, and I assume any occupational sick pay has run out. But several months - in law that is going to be an acceptable time to wait. And they simply cannot not communicate with him about that meeting - that is impossible to do. The doctor has no authority to speak on his behalf. He can attest to the medical condition, but he can't answer anything for him. His only other option is to ask for questions in wiring and submit a written response. That would be a reasonable adjustment.

So he needs proper advice on his circumstances to see if he has any claim against the employer. I know you say it's all the employers fault, but it is simply never that easy. If there is no purpose in remaining in employment, given its impact on him, resigning had to be seriously considered. Because until his employment ends, his employer isn't going away, and in law they do not have to. Quite the reverse - in law they have a responsibility to communicate with him, and certainly if they are considering dismissal they must definitely communicate with him. Whether he responds is a different matter. That is his choice.

It wouldn't be redundancy. It would just be a dismissal on capability grounds. Redundancy is when a job is no longer required, and that is not the case here.

 

However, in the end the employer has to carry out this process - with or without him present. There are significant problems to his non attendance, both for him and for the employer. So if he isn't going to attend the meeting, the employer will probably want that in writing.

 

Being totally honest, he isn't going back to this job. Is he? So my advice would be, first see a solicitor to see if there is any case against the employer, and if not, just resign. Given the impact of this on him, I think that ending this now is probably best. No job is worth your health, and if fretting about going back to work or even attending a meeting has such a bad impact, then there is no point in trying to hold on.

Thinking more along the lines of Ill health retirement which would be a form of redundancy rather than outright dismissal

Thinking more along the lines of Ill health retirement which would be a form of redundancy rather than outright dismissal

I think it would depend whether we're talking about the public or private sector and whether the employee is in a pension scheme. And what type of scheme.

HB

Why would they retire him on medical grounds? Does he even have such a benefit - not everyone does. And employers cannot make that decision, it is the insurers, and they will likely only agree if there is no chance of him ever working again at anything. They'd probably not be likely to agree that.

 

And I didn't say it was about what he wanted. It is about the fact that there is going to be such a meeting whether he attends or not. If he can't go, then at some point the employer will dismiss, and that will, in all probability, be an entirely fair dismissal in law. That isn't about what caused his illness - I'm not commenting on that here. It is about the fact that employers will not wait forever for employees to return to work. He had been off a long time, several months, and I assume any occupational sick pay has run out. But several months - in law that is going to be an acceptable time to wait. And they simply cannot not communicate with him about that meeting - that is impossible to do. The doctor has no authority to speak on his behalf. He can attest to the medical condition, but he can't answer anything for him. His only other option is to ask for questions in wiring and submit a written response. That would be a reasonable adjustment.

 

So he needs proper advice on his circumstances to see if he has any claim against the employer. I know you say it's all the employers fault, but it is simply never that easy. If there is no purpose in remaining in employment, given its impact on him, resigning had to be seriously considered. Because until his employment ends, his employer isn't going away, and in law they do not have to. Quite the reverse - in law they have a responsibility to communicate with him, and certainly if they are considering dismissal they must definitely communicate with him. Whether he responds is a different matter. That is his choice.

I completely agree and have been trying to explain the same that no job is worth more than his health and life but he calls it a matter of principle as he believes that it should be the manager who caused bullying leaving not him.

It all started when his manager called him while he was off sick with another reason and told him that he needs my brother to work more days than he does even though manager shouldn't be calling about work on someone's sick leave. On his return back to work same manager called him inside after his shift ended for a meeting. My brother argued that he needs formal letter to meeting and arrange a union rep but manager not only forced him to meeting about his days but also refused to wait for union representatives saying he is not waiting for any reps. Eventually he was denied a union rep and he ended up taking a colleague and further arguments followed. There were few people who witnessed him being denied a rep and manager shouting across being very forceful etc so he has that grievance in place already.

To answer your questions his SSP has run out ages ago and he has been denied Income Protection something we are challenging on his behalf. I believe they are looking down dismissal route as my brother feared it and mentioned it previously already. He believes that other managers are going to cover for his manager and best way is by sacking my brother so that grievance doesn't go ahead because of grievance goes ahead the charges levelled against manager plus the witnesses means manager might end up losing job or be moved or demoted at the very least.

Lawyers believe my brother has very strong case for personal injury caused due to work related stress but again as mentioned he is not in a stable mental state to go ahead so this will have to wait too. They also said die to what's been happening if he ends up losing job or resigning there is an aspect of constructive dismissal but going down this route will be very very hard.

But thanks a lot for your suggestion I will ask manager if he can atleast wait for Occupational health report. Maybe come and see my brother himself during a welfare visit?

I think it would depend whether we're talking about the public or private sector and whether the employee is in a pension scheme. And what type of scheme.

 

HB

Private sector and he is in standard pension scheme so I think it is heading towards dismissal on basis of capability rather than retirement on medical grounds

[quote name='gleno']I completely agree and have been trying to explain the same that no job is worth more than his health and life but he calls it a matter of principle as he believes that it should be the manager who caused bullying leaving not him. It all started when his manager called him while he was off sick with another reason and told him that he needs my brother to work more days than he does even though manager shouldn't be calling about work on someone's sick leave. On his return back to work same manager called him inside after his shift ended for a meeting. My brother argued that he needs formal letter to meeting and arrange a union rep but manager not only forced him to meeting about his days but also refused to wait for union representatives saying he is not waiting for any reps. Eventually he was denied a union rep and he ended up taking a colleague and further arguments followed. There were few people who witnessed him being denied a rep and manager shouting across being very forceful etc so he has that grievance in place already. To answer your questions his SSP has run out ages ago and he has been denied Income Protection something we are challenging on his behalf. I believe they are looking down dismissal route as my brother feared it and mentioned it previously already. He believes that other managers are going to cover for his manager and best way is by sacking my brother so that grievance doesn't go ahead because of grievance goes ahead the charges levelled against manager plus the witnesses means manager might end up losing job or be moved or demoted at the very least. Lawyers believe my brother has very strong case for personal injury caused due to work related stress but again as mentioned he is not in a stable mental state to go ahead so this will have to wait too. They also said die to what's been happening if he ends up losing job or resigning there is an aspect of constructive dismissal but going down this route will be very very hard. But thanks a lot for your suggestion I will ask manager if he can atleast wait for Occupational health report. Maybe come and see my brother himself during a welfare visit?[/QUOTE] I presume this isn't the whole story? Because your manager asking to have a meeting with you isn't something you have a right to involve the union in - representation is limited to grievance and disciplinary meetings, and a meeting with your manager isn't either. And you don't need a formal letter to have a meeting with your manager. If that is all there is to the story, I see little prospect of the manager being sacked over that. He needs to separate the two things in law. Personal injury is one sort of law - dismissal or resignation is another. Totally different courts, totally different law. You are correct that constructive dismissal is very hard to prove. But so is unfair dismissal on capability grounds. Capability requires the employer only to show a fair process - the reason for the illness is not relevant to that. You see, there is no right in employment law for "work related sickness" to be discounted. So the only real test is whether he has been off work for a long time. He has. And then have they followed, or tried to follow, the process set down for this. And they are doing that. So if he is unable to engage in that process, they will need to show that they tried to support him to engage in it - but in the end they can dismiss without his involvement. That will be a fair dismissal. And given what you have said here about his health, there is no prospect of him returning to work in any capacity in the near future. So those are the grounds for a fair dismissal. What he has to decide, given that, is whether he is able to cope with the situation. I am getting the impression that things are being kept from him by his wife. Quite understandably. But if he is that fragile, then staying in this situation "on principle" is self-destructive. Being mentally ill doesn't make him stupid - he knows the employer is going to do this, and that must be yet another thing that is preying on his mind. I know this because despite being nowhere near as sick as he is, I had the same situation in my last job. I got stitched up by a senior manager with allegations that were fictional, and witnesses that lied. And despite having actually proven that the allegations were lies and the witnesses lying beyond a shadow of a doubt, the employer kept the suspension in place and was "still investigating" allegations that were already beyond doubt lies! That went on for seven months until I got my current job. Why was I suspended - I was too good a union rep. And I went to work for the union! But the fact is that you never really stop thinking about what is happening. And going back eventually becomes an impossibility - even if I had been reinstated, I wouldn't have been able to go back to work there. The truth is that two of the "witnesses" were former "friends", and I hated them with a vengeance. Nothing would have changed that. Which also really brings up something else - he can't really rely on other employees as witnesses. There are a rare few who will testify against their employer in court - the majority of people disappear without a trace and will not get involved. Or if they do, they end up - like my "friends", who originally gave statements in my support! - siding with management to protect their own backsides. The entire situation becomes toxic to you, and there is no going back. To me, the only thing that makes a difference is whether there is a case, and what the best strategy is for that case. For me, the tribunal claim was already in and the employer didn't know I already had another job when they offered a very nice settlement on the condition that I terminated my employment. I was lucky. Most people aren't. So I would still suggest that he ascertain whether there is any purpose in continuing his employment if he isn't in a fit state to fight for it, and even if he won, no certainty he could go back. The only good reason to stay there is if it is strategically necessary.

I presume this isn't the whole story? Because your manager asking to have a meeting with you isn't something you have a right to involve the union in - representation is limited to grievance and disciplinary meetings, and a meeting with your manager isn't either. And you don't need a formal letter to have a meeting with your manager. If that is all there is to the story, I see little prospect of the manager being sacked over that.

 

He needs to separate the two things in law. Personal injury is one sort of law - dismissal or resignation is another. Totally different courts, totally different law. You are correct that constructive dismissal is very hard to prove. But so is unfair dismissal on capability grounds. Capability requires the employer only to show a fair process - the reason for the illness is not relevant to that. You see, there is no right in employment law for "work related sickness" to be discounted. So the only real test is whether he has been off work for a long time. He has. And then have they followed, or tried to follow, the process set down for this. And they are doing that. So if he is unable to engage in that process, they will need to show that they tried to support him to engage in it - but in the end they can dismiss without his involvement. That will be a fair dismissal. And given what you have said here about his health, there is no prospect of him returning to work in any capacity in the near future. So those are the grounds for a fair dismissal.

 

What he has to decide, given that, is whether he is able to cope with the situation. I am getting the impression that things are being kept from him by his wife. Quite understandably. But if he is that fragile, then staying in this situation "on principle" is self-destructive. Being mentally ill doesn't make him stupid - he knows the employer is going to do this, and that must be yet another thing that is preying on his mind.

 

I know this because despite being nowhere near as sick as he is, I had the same situation in my last job. I got stitched up by a senior manager with allegations that were fictional, and witnesses that lied. And despite having actually proven that the allegations were lies and the witnesses lying beyond a shadow of a doubt, the employer kept the suspension in place and was "still investigating" allegations that were already beyond doubt lies! That went on for seven months until I got my current job. Why was I suspended - I was too good a union rep. And I went to work for the union! But the fact is that you never really stop thinking about what is happening. And going back eventually becomes an impossibility - even if I had been reinstated, I wouldn't have been able to go back to work there. The truth is that two of the "witnesses" were former "friends", and I hated them with a vengeance. Nothing would have changed that. Which also really brings up something else - he can't really rely on other employees as witnesses. There are a rare few who will testify against their employer in court - the majority of people disappear without a trace and will not get involved. Or if they do, they end up - like my "friends", who originally gave statements in my support! - siding with management to protect their own backsides. The entire situation becomes toxic to you, and there is no going back. To me, the only thing that makes a difference is whether there is a case, and what the best strategy is for that case. For me, the tribunal claim was already in and the employer didn't know I already had another job when they offered a very nice settlement on the condition that I terminated my employment. I was lucky. Most people aren't.

 

So I would still suggest that he ascertain whether there is any purpose in continuing his employment if he isn't in a fit state to fight for it, and even if he won, no certainty he could go back. The only good reason to stay there is if it is strategically necessary.

The manager wanted to take away his flexibile working contract thus I said manager wanted my brother to work extra days. Due to this reason manager wanted to carry out a meeting. I am sure that scenario manager needed to write and formally invite my brother to meeting and allow union rep?

The manager wanted to take away his flexibile working contract thus I said manager wanted my brother to work extra days. Due to this reason manager wanted to carry out a meeting. I am sure that scenario manager needed to write and formally invite my brother to meeting and allow union rep?

No, I'm afraid not. The law is very specific on this matter. You are entitled to union representation at grievance and disciplinary meetings - nothing else. It is up to the employer whether they permit a union representative at other meetings, and if they say no, that is the end of the matter. Most employers won't say no (half the time because they don't know they can refuse anyway!) but if they do we have to abide by that decision, and communication with the employer on such matters would be formally in writing. And there is no law that says a manager must write to someone to invite them to a meting, or even give them notice. So I regret to say that your brother was in the wrong about that. He could have gone and simply said that he didn't agree to the change, and would be consulting his union. But he couldn't refuse to go to the meeting.

That fact obviously undermines his position on this incident, if he got into an argument with the manager. The manager should have kept their cool and not allowed it to escalate, but your brother shouldn't have refused to speak to him. However, there must be more to it than that - having a disagreement with ones manager about working hours doesn't explain the extreme reaction that he has had. That is what he needs to explore with his union (I presume the solicitor is the union solicitor?). It is about whether he has a case of anything should he be dismissed. If, all things being correct procedurally, there is no case for unfair dismissal or discrimination, then dragging this out seems relatively pointless if he intends to sue for personal injury anyway. In many ways the personal injury claim would be easier on him and he should get on with that - such claims are very lengthy anyway, and the initial stages tend to consist of exchanging medical reports, perhaps a medical examination, and lots of arguing and posturing by lawyers! They may get to court in a few years - but equally, oft times they are settled if it looks likely that it will go to court. And if he has been told he has a good case to claim, then that might be the most sensible approach, as he can sue for loss of income for a much longer period than a tribunal will be able to award. Plus compensation for the injury to his mental health.

But I am not trying to persuade him to resign. Just pointing out the options and possible avenues of approach, and what is his best interest. I don't know enough about this and his union are the best people to be dealing with all of this. They know the detail, but they also know the employer - and knowing the employer may be half of the battle at times, because you know what they are likely to do.

No, I'm afraid not. The law is very specific on this matter. You are entitled to union representation at grievance and disciplinary meetings - nothing else. It is up to the employer whether they permit a union representative at other meetings, and if they say no, that is the end of the matter. Most employers won't say no (half the time because they don't know they can refuse anyway!) but if they do we have to abide by that decision, and communication with the employer on such matters would be formally in writing. And there is no law that says a manager must write to someone to invite them to a meting, or even give them notice. So I regret to say that your brother was in the wrong about that. He could have gone and simply said that he didn't agree to the change, and would be consulting his union. But he couldn't refuse to go to the meeting.

 

That fact obviously undermines his position on this incident, if he got into an argument with the manager. The manager should have kept their cool and not allowed it to escalate, but your brother shouldn't have refused to speak to him. However, there must be more to it than that - having a disagreement with ones manager about working hours doesn't explain the extreme reaction that he has had. That is what he needs to explore with his union (I presume the solicitor is the union solicitor?). It is about whether he has a case of anything should he be dismissed. If, all things being correct procedurally, there is no case for unfair dismissal or discrimination, then dragging this out seems relatively pointless if he intends to sue for personal injury anyway. In many ways the personal injury claim would be easier on him and he should get on with that - such claims are very lengthy anyway, and the initial stages tend to consist of exchanging medical reports, perhaps a medical examination, and lots of arguing and posturing by lawyers! They may get to court in a few years - but equally, oft times they are settled if it looks likely that it will go to court. And if he has been told he has a good case to claim, then that might be the most sensible approach, as he can sue for loss of income for a much longer period than a tribunal will be able to award. Plus compensation for the injury to his mental health.

 

But I am not trying to persuade him to resign. Just pointing out the options and possible avenues of approach, and what is his best interest. I don't know enough about this and his union are the best people to be dealing with all of this. They know the detail, but they also know the employer - and knowing the employer may be half of the battle at times, because you know what they are likely to do.

I know you are not persuading him to resign but I am definitely persuading him to resign given how badly this has affected him. You are also correct there was a buildup to this as manager has his bias towards people working Flexible Working and he said many offensive things including comments about his children.

I am surprised to know that meeting involving management making changes to employment conditions/contracts doesn't entitle employees to union representation something I need to check further with union solicitors.

I understand your views about constructive dismissal but does his mental illness under the scope of disability? Asking if we can challenge dismissal under disablilty act?

I know you are not persuading him to resign but I am definitely persuading him to resign given how badly this has affected him. You are also correct there was a buildup to this as manager has his bias towards people working Flexible Working and he said many offensive things including comments about his children. I cannot say I blame you. If it were a relative of mine, I'd tell them the same thing. Being a union official, I actually know more about this than most people - including solicitors - because I am the one who sits through all this. It isn't something I would wish on my worst enemy. Once it hits a mental health disorder, in my opinion, nothing is worth the fight. Mental health deteriorates very quickly once under this sort of pressure. Some people can take it and don't break, but they are far from the norm.

 

I am surprised to know that meeting involving management making changes to employment conditions/contracts doesn't entitle employees to union representation something I need to check further with union solicitors. Nothing except grievance and disciplinary does. Most employers aren't going to refuse - but refuse they can. Unless there is something in a recognition agreement, but that would be unusual. The only exception to this is where someone is a union official, and it's not a big difference and only advice - but employers are advised to ensure that they consult early with the union if they intend to take any action involving a union representative, for the very obvious reason that it may be viewed as discrimination against a union official - which is frowned upon by the law.

 

I understand your views about constructive dismissal but does his mental illness under the scope of disability? Asking if we can challenge dismissal under disablilty act? It's the Equality Act 2010 - the Disability Discrimination Act was repealed in 2010. But it doesn't matter much - no, neither Act provided the protection that you (and many other people) think it does. An employer is not prevented from dismissing a disabled worker on the grounds of sickness (or anything else). They must treat the worker equally under policy, but treating them equally might mean taking reasonable adjustments into account. That may, for example, include grating slightly more sick leave before capability comes into play. But no - not the months that we are talking about here. And your description of his condition, which is probably underplaying it rather than overplaying it, is of someone for whom no adjustments would now make him fit to return to work in the short term. I doubt even sacking the manager (which I repeat, I doubt will happen) would produce that kind of recovery.

What you are describing is what most people refer to as "the union being useless". We get the blame because we cannot stop the employer doing more or less what they want, and people fail to recognise that we can only act where the law permits us to. So, for example, with most employers, we would probably get somewhere arguing for adjustments for a disabled person who is in work, but very rarely much for people who are sick, no matter what the cause. I mainly work in the public sector, which is notoriously "easy" (that being defined as "most people are also misinformed about that") - the average "disability allowance" amongst my employers for additional sickness is two days per year. maybe three for a generous employer. And that's over and above an average of about 9 days for the general workforce. So at about eleven days per year, sickness absence processes would kick in even for disabled employees. In some of our employers, approaching half the workforce is in stage one or stage two of the procedure (3 being dismissal!). Basically, one bad dose of flu and you are screwed. Once in the process it is almost impossible to get back out unless you are 100% fit for an entire year - or you go to work sick. So if you consider that that is the "good" end of the spectrum, then your brothers employer has given quite a lot of leeway for a private sector employer, even though this is long term absence, and may now be a disability. These days, the only circumstances in which employers don't dismiss as a rule, and this is only because they would be deemed right b****ds if they did, is terminal cases. And there is still nothing to stop them dismissing.

Guys since there has been some time that has elapsed there is some new progress and I need some help with it:

Despite family, GP, Occupational Health and Consultants warning the company not to make contacts with my brother, because it is being counter productive, the company still continued contacting my brother on several occasions which according to medical opinion, is something that is not letting my brother make an effective and timely recovery.

On the other hand my brother's company holds an Income Protection Scheme for people on long term sickness. Once someone is on this scheme the company keeps them on books (no retirements on medical grounds).

My brother should've been on it in November 2016 but he did not hear back from insurers until April 2017. This is approximately 5 months later than he should've been receiving this Income Protection. Insurers being insurers refused him on some very lame grounds and declared him being fit and able to carry out his normal duties without any clinical examinations.

His treating doctors and consultants were consulted and we gave further evidence, based on clinical examinations from various medical professionals which included GP, physiotherapists, different consultants and even company's Occupational Health Physicians. They unanimously agreed that my brother is NOT FIT FOR WORK. Therefore, the opinion was that the insurer's were wrong in their assessment which did not include clinical assessment.

In August 2017 an appeal was put in against this decision, this was within timelines. However, once again we did not hear anything back from the insurer. Recently he received a letter from the employer (despite been advised not to make direct contacts), that the company wants to come around to discuss outcome of the Insurer's Income Protection Appeal.

When we reminded management about medical professional's advice including company's own Occupational Health, the managers decided to meet me and his wife instead. We were expecting an outcome for the appeal, however the company offered us Settlement Agreement instead. The key point of that conversation were as follows:

1. Insurers believes; my brother is unlikely to return to work anytime soon due to his condition;
   
   
2. However, my brother does not meet insurer’s criteria to be on income protection scheme;
   
   
3. but, insurer does believe that my brother does have some condition that affects his ability to work;
   
   
4. therefore, insurer would like to make an offer; i.e. Settlement Agreement.
   
   
5. HR manager further said, that my brother needs to consider carefully as insurer has made an indication to company, that my brother’s appeal to be on income protections is more than likely to be rejected.
   
   
6. In such case; Since my brother has been off sick for a long period of time, the company will begin Long Term Capability Process in earliest;
   
   
7. and my brother is likely to lose her job as a result of Long Term Capability, in which case my brother will lose out on any offers made under Settlement Agreement and will only receive monies for notice period and outstanding holiday pay.
   

The Problem with this Settlement Agreement was that the money offered was too less. If for example my brother's appeal were to be successful the backdated pay itself would've been more than the sums offered, let alone loss of employment and future employability. Also, this would mean that my brother had to agree not to bring in any lawsuits against the employer and there were a list of conditions such as My brother will not bring in any lawsuits for:

(a) any harassment and bullying my brother suffered;

(b) any personal injuries that were caused as a result of this harassment and bullying;

© any breaches of employment law;

(d) discrimination etc

There were further issues that raised our doubts:

(i) If insurers believe that my brother does not meet their criteria then why would they pay him even a penny let alone the sums offered?

(ii)If insurers are offering this Settlement Agreement then why is that every clause is about protecting possible wrong doing of employers and not to bring

any claims against employers? The insurers should've been trying to cover themselves from lawsuits rather than employers

We suspected that it might be employers who are not being completely honest to us and after careful consideration we turned the settlement agreement down. We indicated to manager that in case of our appeal getting turned down we will be taking insurer to Financial Ombudsman and if we won then just the backdated pay itself will be more than the money offered. Secondly since, the settlement agreement was offered by long term sickness pay protection insurer we were not willing to agree to give in any rights to bring in lawsuit against the employers.

As a result we have been advised that the company will now try to follow up Long Term Sickness Capability process in earliest and will NOT wait for us to take this appeal to Financial Ombudsman.

The question is:

1) Is it fair for the company not to wait till the appeal is taken to Financial Ombudsman and is decided?

2) Is it fair for the company not to consider that the delay itself is caused by their chosen insurer? The insurers were 5 months late in telling us initial decision and they are holding on to Appeal since August 17 (nearly 4 months)? Because if this was decided then there would be no need for any capability as my brother would've automatically secured his job

3) If the company dismisses my brother on Capability then will he lose the right to be on the Income Protection Scheme? As this is a part of benefits he receives being in this job?

4) If that were to happen then can we file a case against Insurers for the loss?

Thanks for your help

1 Yes, they dont have to wait and it would be unusual for them to do so.

2 has he suffered a financial loss that is directly attributable to an error or omission on their part?

3Yes, he will lose that benefit

4Unlikely and for q3 the answer is no.

This is why they are offering a settlement, if he doesnt accept and then take the employer/insurer to court and loses then he will be liable for ther costs as he turned the offer down. They are taking a pragmatic approach believeing that a settlement is cheaper in the long run for them and carries no risk. A court case takes time and money and they risk losing and that may mean a bigger settlement but all balanced against them winning. That is what insurance is all about

1 Yes, they dont have to wait and it would be unusual for them to do so.

2 has he suffered a financial loss that is directly attributable to an error or omission on their part?

3Yes, he will lose that benefit

4Unlikely and for q3 the answer is no.

 

This is why they are offering a settlement, if he doesnt accept and then take the employer/insurer to court and loses then he will be liable for ther costs as he turned the offer down. They are taking a pragmatic approach believeing that a settlement is cheaper in the long run for them and carries no risk. A court case takes time and money and they risk losing and that may mean a bigger settlement but all balanced against them winning. That is what insurance is all about

There are couple of issues though. Even they have offered Settlement Agreement shouldn't the money offered under agreement be practical reflection of the losses suffered?

Also we suspect that his company is lying as they have offered money quoting its from insurer; but on the other side they are saying insurers do not believe my brother has a valid case. Why on earth in such a case insurance offer even a penny when they can walk away without paying anything?

And most importantly if hypothetically the insurers have offered money then why would they mention in details not to bring any claims against company? Don't you think more sane logic will be to cover themselves against any lawsuits rather than the company?

Hello there.

Part of your problem seems to be that the employer are in the middle of the negotiations, as it's their policy for the employees.

Have you seen the offer/calculations on insurance company headed paper?

HB

I am afraid I have come across this one far too often in the private sector. This sort of insurance is broadly useless, because this is what always happens! So actually, I did believe the employer here. Where the prospect of someone returning to work is low, they will fight to the bitter end to not pay out. And they can drag this on for many years, until he can't deal with it any longer and walks away. The employer ends up piggy in the middle because the insurer often won't put anything in writing - the insurers are the EMPLOYERS insurers, not the employees. So the contract is between them and there is no cause for them to discuss anything with him. AND that also means that he can't go to the insurance ombudsman - assuming this is the type I have come across before - because he has no relationship with the insurer and therefore cannot hold them to account. Only the employer can appeal, and why would they? Equally, the employer is under no obligation legally to take his side - they can pass the buck for ever, because they are not under any obligation to fight a battle with the insurers for him. A friend of mine had the same issue when working for a bank - she had no option but to take the amount on offer. And she was also in the union. But, as I said, what the insurer chooses to do can spin this out for years if not ever.

If he can't move past this, then take the offer. Or he may well be still battling his employer in a decade with no prospects. By which time he'll struggle to regain his health and ever hold down another job. At the very least, push back and make a counter offer - see if they will budge. But this isn't going to be easy to resolve in the way he wants it to.

Hello there.

 

Part of your problem seems to be that the employer are in the middle of the negotiations, as it's their policy for the employees.

 

Have you seen the offer/calculations on insurance company headed paper?

 

HB

NO!! And now we have also received SAR back from insurers and it contains all the communication that has taken places between employers and insurers and there has not even been a single mention of insurers requesting or instructing employers to make any offers on insurer's behalf.

This only conforms to our suspicions that employers have possibly lied to us

I am afraid I have come across this one far too often in the private sector. This sort of insurance is broadly useless, because this is what always happens! So actually, I did believe the employer here. Where the prospect of someone returning to work is low, they will fight to the bitter end to not pay out. And they can drag this on for many years, until he can't deal with it any longer and walks away. The employer ends up piggy in the middle because the insurer often won't put anything in writing - the insurers are the EMPLOYERS insurers, not the employees. So the contract is between them and there is no cause for them to discuss anything with him. AND that also means that he can't go to the insurance ombudsman - assuming this is the type I have come across before - because he has no relationship with the insurer and therefore cannot hold them to account. Only the employer can appeal, and why would they? Equally, the employer is under no obligation legally to take his side - they can pass the buck for ever, because they are not under any obligation to fight a battle with the insurers for him. A friend of mine had the same issue when working for a bank - she had no option but to take the amount on offer. And she was also in the union. But, as I said, what the insurer chooses to do can spin this out for years if not ever.

 

If he can't move past this, then take the offer. Or he may well be still battling his employer in a decade with no prospects. By which time he'll struggle to regain his health and ever hold down another job. At the very least, push back and make a counter offer - see if they will budge. But this isn't going to be easy to resolve in the way he wants it to.

Thank you Sangie,

I do not agree that the matter cannot be taken to Ombudsman because it is a part of appeal process and I have checked that once the appeal is rejected we have the right to appeal to the Ombudsman.

The issue here is that money offered is so low that even backdated pay (if appeal is upheld either by insurer of Ombudsman) will be more than compensation offered. I am not even commenting on any future financial losses or loss of employment at this stage. Secondly, we have been told by employers that my brother does not meet the criteria to be on the insurance scheme. So if that were the case then why would insurer offer anything if they believe my brother does not meet criteria?

Also by signing the agreement my brother will surrender all the rights to bring in any claims against the Employers NOT Insurers. Why would an income protection insurer pay to save employers from future lawsuits?

And now having checked paperwork and correspondence on my brother's file that took place between employers and insurers I fail to see any mention that insurers have instructed employers to make any offers to my brother.

Does that not sound something fishy on employer's behalf?

fishy?

No normal. the insurer is taking the financial risk so they call the shots as long as the law is not broken. If they told the employer to send people round t his house and force him to sign things with threats of a good beating that would be very different. If that was the case then the employer is not bound to follow that instruction anyway and cannot rely on it as a defence for assault.

The surrendering of all rights is actaully limited so for example if he gets asbestosis or other industrial disease then they are still culpable regardles of the disclaimer.

Again, this is normal and basically stop him form claiming unfair dismissal a month after he take the golden bullet.

As Sangie says he would be wise to consider what they are offering and then if he thinks there is room for negotiation put in his bid for more. Chances are they got somehting wrong procedurally earlier on and this will give him grounds to go to an ET for a technical reason but not get any substantial settlement but would cost them money so they will have factored this into their offer. Thinking that they may have to start spending on lawyers fees may well get them to increase the settlement if his counter to their offer appears to be based on something