If you are sure of your ground and it was an unlawful deduction then it may be quicker to use the small claims track of the county court. Cost you around £50 but you get that back. If you want to argue over the law then an ET is the way to go and is free but you could be waiting a long while to get anywhere.

Hi.

Just to clarify, is this an appeal tribunal or a first stage tribunal please? EB could be right about small claims though, we often recommend that.

HB

what happened between this thread and you being unemployed?

https://www.consumeractiongroup.co.uk/forum/showthread.php?486143-Is-this-garden-leave/page2

Given the previous thread, this is very likely relating to the same issue.

That would not be appropriate to a county court as it would require the application of employment laws.

The OPs belief that they acted outside their own policy or that they have broken the law is an opinion.

Clearly the employer has a different opinion.

So it is not a simple issue of unlawful deductions.

I wouldn't recommend a county court route if this is the case.

Just reread that thread.

if you are thinking the same as me Sangie then I see tears before bedtime unless the OP can give us more on what has happened since.

With a phased return it would be unusual to be given full pay unless the company sickness scheme has an extended period where you get full pay anyways such as 6 months on full pay and then 6 months on half pay.

the phased return would then just slot into whichever part is applicable and the time worked for your rehabilitation reassessed on a regular basis, maybe even fortnightly.

If you are relying on someones word or goodwill then that is a damned sight harder to argue that it is a condition of your employment at the time even if you have been roayally shafted after accepting it in good faith

Yes this does relate to a previous thread.

I was deemed fit to return to work by my employers OH doctor and by my GP though my employer said no to a return. My 6 months of full pay ended 2 weeks after the GP and OH doctor agreed I should return on a phased basis.

For 6 weeks I was put onto half pay while a return to work plan was arranged. Bear in mind I am an office based worker this would have taken around a couple of hours to organise and was certainly not rocket science!

The company sickness policy states if the employee considers themselves fit for work but the employer does not then this is medical suspension.

To me it is absolutely clear I was medically suspended and should have received full pay for that period, hence why I am wishing to challenge it on the basis of the company policy not being adhered to. Thus this is a legal challenge.

Policy Is not law

Sorry, but this will end in tears.

You were not fit for work.

You were fit for work only with adjustments.

If you were fit for work that means returning to your normal job, without any adjustments, including working your full normal hours.

If you did anything other than that, it was not a medical suspension and the employer was within their rights to refuse.

You have just lodged a claim against your employer based on an incorrect reading of the law.

I have just told someone else, demanding things that you think are the law when they are not is the quickest route to less support and flexibility from the employer.

When I discussed the situation with Acas they advised it should go though their early conciliation pathway.

When you spoke to ACAS, you spoke to a contact centre filled with staff whose knowledge of employment law possibly rivals that of the average employee...

You have just lodged a claim against your employer based on an incorrect reading of the law. As I have just told someone else, demanding things that you think are the law when they are not is the quickest route to less support and flexibility from the employer.

I believe he has an arguable point

However, my post isn't about the merit of his case

I just want to point out that lodging a Claim under the Equality Act 2010 is a Protected Act (section 27 of EqA 2010)

He shouldn't be victimized due to that

It is irrelevant if his Claim is found to be misconceived (see Woodhouse v West North West Homes Leeds Ltd EAT/0007/12)

If his employers offer him less support or are inflexible they will be breaking the Law.

This isn't a claim under the Equality Act, and there is no evidence that it ever will be.

Nobody mentioned victimisation.

It's really Fab that you can Google, but could you try applying what you read to the actual situations that posters are describing.

That way they won't go off on flights of fantasy.

threads merged for full history

dx

Well you should know that asserting any statutory right is protected

Common law offers such protection but most importantly, the Employment Rights Act offers such protection

You don't need case law to know that

I could give you some case laws though

He hasn't lodged any claim under the Equality Act.

There have been no claims of victimisation.

This is a straightforward claim of unlawful deductions, and the basis of the claim is misconceived because the OP did not know how fit notes operate.

You are providing advice based on some other premise entirely.

You cannot make up cases for people to try to fit case law that you think you have read.

People following such advice will end up in a great deal worse a situation than they are already in.

The OP has a Statutory Right against unlawful deduction (s13 ERA1996)

Even if your point is correct that his claim is misconceived (I disagree anyway)

He shouldn't suffer detriment for asserting that statutory right

That would be a clear case of victimization

I wonder why you don't support your position with case law

You expect others just to accept what you say and you fail to provide evidence to back it up

Provide one or two case laws

This is my last reply to you. And I am only doing so to assist the OP. Would you please explain how toy provide case law to prove a negative? Don't be silly now. There is nothing, nothing whatsoever, in any of the OPs posts that suggest there had been any victimisation for any reason. You are making stuff up.

OP - you may take advice from anyone you like, but I have to warn you that you should carefully consider the implications of following advice to lodge further claims as suggested by this poster.

Thanks Sangie595 - my fit note says I'm to return on a phased basis though, as you say, my employer has overruled the GP's opinion and has a right to do so. However, the OH doctor who suggested a neuropsychological assessment following my stroke could be carried out concurrently with a return to the workplace. The employer has chosen not to do this.

Why is your employer overruling the GP's opinion?

While they have the right to ignore the GP's fit note they have to do so ONLY on the basis of another medical evidence

They can't just arbitrarily ignore it

You need to ask on what basis they are ignoring it

If they choose to ignore it then they are opening themselves to a potential claim as seen in the ET ruling in Wilding v British Telecommunications plc

You also said they are ignoring the OH doctor's suggestion

They have to have a reasonable grounds for that

If they don't accept the current medical advice then they should get a second opinion

You just can't ignore medical advice; all employers would do so

This is the guidance from the Dept of Health;

The assessment about whether your employee is not fit for work or may be fit for work (and any other advice in the fit note) is classed as advice, and it is for employers to decide whether to accept it. Occasionally, you may believe that your employee is not fit for work when they have been assessed as fit for work by their doctor, or you may think that your employee could do some work when they have been assessed as ‘not fit for work’ by their doctor….. In situations like this, you as the employer are within your rights to gather other evidence about your employee’s fitness for work from other doctors or healthcare professionals. You can choose to give this other evidence precedence over the advice in the fit note.

As can be seen, the employer HAS to have other evidence before overruling the doctor's fit note.

You really need to ask questions

Here is the website: https://www.gov.uk/government/publications/fit-note-guidance-for-employers-and-line-managers

And you really need to start reading posts.

The employer DID NOT over rule the doctors fit note.

The fit note said that the OP would only be fit for work with adjustments.

There is no legal requirement for an employer to make those adjustments, or to make them within a specific timeframe.

Until such time as adjustments are made, the subject of a conditional fit note REMAINS UNFIT FOR WORK.

I hope it is now becoming clear to readers of these threads that making up facts to fit a preconceived and incorrect premise is dangerous.

It's now up to them to determine whose advice is correct.

I'm out unless the OP, not you, wants to know more about the actual law.

Section 20 of the Equality Act 2010 imposes a duty on employers to make reasonable adjustment

There is also the Duty of Care to the employee so that he doesn't suffer from depression and unnecessary financial difficulty

It will be beneficial to the OP if you also point out the relevant laws and guidance

Just saying "is the law" is vague and unhelpful

I didn't want to say anything back then but this position is contrary to case law

The employer has a duty of Pay Protection

See G4S Case Solutions (UK) Ltd v Powell

An update.

 

I'm on half pay while awaiting the psychological assessment suggested by the OH doctor.

 

My employer says it would be too risky for me to return to the workplace without back to work suggestions from the psychologist (I've only had a stroke six months ago!).

 

Despite my argument that this is medical suspension and my GP saying I'm fit to return, my employer has overruled my GP.

My union say I have no option than to go along with what's happening and see my GP to ask him to say I'm sick with work related stress..

Here is where the OP said his employer has overruled his GP

Sorry I had to repost this

I didn't know how to do multi-quote

In any event, here is where the OP said the employer overruled his GP

And if you read the whole thread, you will find that in post #31 the OP makes it clear that the fit note was conditional upon a phased return.

Just because the OP said something happened doesn't make them right, any more than quoting googled cases makes you right.

You are reading selectively, but the OPs description of what had happened in the posts made it very clear that the fit note was not unconditional. Exactly as I have said all along.

So now the OP is wrong!

It will be great if you show us the relevant statues in which you base your position

You just want us to accept your position without any evidence

I have made several references to case laws and yet you have not distinguished them

Shouting the loudest doesn't make you right

For goodness sake, I am quoting the OP. The OP is the one who said this, so how on earth do you get to accuse me of saying they are wrong?

Anyone can Google and quote the title of a case.

It doesn't mean they have a clue what they are talking about.

It does not need case law to say that a fit note that is conditional does not mean you are fit.

It means you may be fit IF the employer and employee put the adjustments in place.

There is no obligation in the statute for the employer to do that, or to put them in place within a specific time frame.

The employer did not overrule a fit note.

They did not have the adjustments in place so the fit note was not actionable

- the OP was still unfit for work. Not according to case law.

According to the law.

Please read the last paragraph on page 4.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/578032/fit-note-guidance-for-employers-and-line-managers.pdf

Or are you going to argue that the DWP don't know how fit notes work either?

This is wholly ridiculous.

All you are doing is parroting a series of case law findings that have no application to the actual scenarios and then telling posters to go to law on the basis of bad law.

You are not helping people

You are putting them at risk.

That might be entertaining for you.

It will not be as entertaining for the people who follow your advice.

dondada,

just quoting cases is like taking someone to a law library and saying "look at all the books!"

What is helpful is highlighting the specific circumstances of the ruling, the specific point of law, and in what way they are like the posters case. If they posters case does not rely on the same point of law, then they are not useful cases.

G4S versus Powell probably does not apply here, because it concerned a case of disability. Illness is not disability except in very specific circumstances.

thread tidied

unnecessary quotes remove

pdf link sorted.