Marc Gander - The Consumer Survival Handbook


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  1. #41
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    Default Re: Is this garden leave??

    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


  2. #42
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    Default Re: Is this garden leave??

    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.


  3. #43
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    Quote Originally Posted by andyasw View Post
    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/public...-line-managers


  4. #44
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    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.


  5. #45
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    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

    Quote Originally Posted by andyasw View Post
    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


  6. #46
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    Default Re: Is this garden leave??

    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.


  7. #47
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    Default Re: Is this garden leave??

    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


  8. #48
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    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.go...e-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.

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  9. #49
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    Default Re: Is this garden leave??

    dondada,

    just quoting cases is like taking someone to a law libraryicon 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.

    Never assume anyone on the internet is who they say they are. Only rely on advice from insured professionals you have paid for!
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    Default Re: Is this garden leave??

    thread tidied
    unnecessary quotes remove
    PDFicon link sorted.

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  11. #51
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    Quote Originally Posted by Emmzzi View Post
    dondada,

    just quoting cases is like taking someone to a law libraryicon 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.

    The OP said he had stroke about 6 months ago.The govt guidelines list stroke as long term impairment deemed a disability

    https://www.gov.uk/government/public...y-act-guidance

    It is on page 8 G4S v Powell is clearly applicable to his case


  12. #52
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    Quote Originally Posted by dondada View Post
    The OP said he had stroke about 6 months agoThe govt guidelines list stroke as long term impairment deemed a disability

    https://www.gov.uk/government/public...y-act-guidance


    It is on page 8 G4S v Powell is clearly applicable to his case
    I am afraid your reading comprehension is flawed. That page says disability CAN arise from a stroke, not that it DOES ALWAYS. Indeed I know a large number of people who have made a full recovery from a stroke and gone on to live very active and fulfilling lives. I hope this also happens for the OP.

    So unless OP can give is a fuller view on the condition and if it meets the legal definition of disability, I am afraid further case law is of no relevance.


  13. #53
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    Default Re: Is this garden leave??

    By the way, I thought other readers might like a summary of the case referred o
    https://www.personneltoday.com/hr/th...cases-in-2016/

    6. Pay protection can be a reasonable adjustment

    G4S Cash Solutions (UK) Ltd v Powell (EAT)

    What happens to the pay of a disabled employee who is moved to a new role because he or she is unable to continue in an old role?

    In Powell, a maintenance engineer developed back problems and retained his existing terms and conditions, but moved to the lesser role of “key runner”.

    However, a dispute arose after his employer said that it would only keep the role, which it said was designed to be temporary, if he agreed to a reduction in pay.

    In the engineer’s subsequent disability discrimination claim, the EAT accepted that, while not an “everyday event”, there is no reason why pay protection cannot be a reasonable adjustment as part of a package of measures to get an employee back to work.“

    You will see from the wording that pay protection is seen, in some cases, as a reasonable adjustment to help an employee back to work, but it is by no means suggested it applies in every case, or is necessary in every case. More explicitly “However, it also said that the question of whether it was reasonable for that particular employer was separate and should be considered on a case-by-case basis” (http://dixcartlegal.com/articles/emp...protecting-pay)

    So it would be nothing short of reckless to encourage people, even those with a clearly evidenced disability, to rely on this case law.

    Dondada, I think if you are going to ask Sangie to quote laws to support their advice, your own evidence needs to be of a much higher quality too. Otherwise people will be confused and misguided. This should, to my mind, be a place for help and support, not debating club. Usually I’ve got better things to do than hunt down and refute inappropriate case law, but when I have time, I’ll keep doing it, so people are well informed.


  14. #54
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    Default Re: Is this garden leave??

    On the Equality Act note, I also have type 1 diabetes that was declared to my employer 21 years ago when I was appointed but they have never asked about reasonable adjustments.


  15. #55
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    Default Re: Is this garden leave??

    Quote Originally Posted by Emmzzi View Post
    You will see from the wording that pay protection is seen, in some cases, as a reasonable adjustment to help an employee back to work, but it is by no means suggested it applies in every case, or is necessary in every case. More explicitly “However, it also said that the question of whether it was reasonable for that particular employer was separate and should be considered on a case-by-case basis” (http://dixcartlegal.com/articles/emp...protecting-pay)

    .

    Thank you for bringing this out as it illustrates my point "Case by case basis", I take that to mean it is fact sensitive.The OP (and others) in similar circumstances are now aware that Pay Protection COULD be a reasonable adjustment.Since they alone know the facts of their cases, they would then read the case law and see if it applies to their own case.



    It is very annoying when people insult the intelligence of others because they asked a simple question.The OP is intelligent enough to research any Case Law and decide if it applies to him.

    Let him do so, please

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  16. #56
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    Default Re: Is this garden leave??

    no such requirement 21 years ago and the EA didnt exist either and they arent expected to be clairvoyant.

    Pick your battles carefully.


    Quote Originally Posted by andyasw View Post
    On the Equality Act note, I also have type 1 diabetes that was declared to my employer 21 years ago when I was appointed but they have never asked about reasonable adjustments.



  17. #57
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    Default Re: Is this garden leave??

    In reply to ericsbrother and the point he made - wouldn't any employer, irrelevant of the length of time in charge of an employee, be required to be cognisant of any legislative changes and be required to implement such according to such members of the affected workforce?

    Dondada has inspired me to continue my claim - thank you.

    Going back to my recent post - where can I learn about representing myself should this end up at an EAT?


  18. #58
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    Default Re: Is this garden leave??

    Have you attended an ET or EAT? I know for an ET you can attend a local one, not sure about second tier hearings.

    Edit: As far as I can see you haven't confirmed whether this is an employment tribunal or an employment appeal tribunal.


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  19. #59
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    Default Re: Is this garden leave??

    Sorry HB, my error, this would be heard at an ET.


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    Default Re: Is this garden leave??

    Quote Originally Posted by andyasw View Post
    In reply to ericsbrother and the point he made - wouldn't any employer, irrelevant of the length of time in charge of an employee, be required to be cognisant of any legislative changes and be required to implement such according to such members of the affected workforce?

    In 21 years, have you ever needed an adjustment to accomodate your diabetes? I have MS but don't really need them to do anything abiout it.... managing my condition is currently down to me!

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