correct way to terminate employment due to long term sickness

[largemarge]

Hi All,

I have been off of work since june of last year, because of back pain resulting from degenerative disks and nerve damage.( i have a condition called scoliosis, curvature of the spine) .

I am a nurse working in general practice.

Following ct scans, treatment from a pain clinic, and examinations from my consultant and occupational health, it was aggreed that i would no longer be able to return to my work. I will point out that prior to last june, for approx 18 months, my employer aggreed to a change of duties, mainly desk work, to see if this would help, but sadly not.

I have applied to have my pension benefits paid early, due to my ill health (i have a nhs pension).

I have had little contact with my employer,except to fill in the forms to apply to the pensions agency for payment of benfits. I was paid full pay, then half pay, as per my contract of employment, and now that has finished i am in receipt of ESA.

The Dr at the ocupational health sent me a copy of the letter that he had sent to my employer, confirming my progressive illness, and that he supported my requests.

It was aggreed at the meeting i had with my employer that the chances of me returning to work work highly unlikely (verbally)

Today i received a payslip, detailing holiday pay that was owed to me, and my p45. No covering letter, giving notice to terminate my employment, or even to wish me well!

My question is, should have i been given notice to terminate my employment, and paid for that notice period? or was the payment of holiday pay, and letter from the occupational health sufficient.

A missing letter of thanks/wishing me well does not suprise me in the least. I will add that i will have worked for my employer for 6 years next month.

I would welcome any advice, unfortunately i am no longer a member of a union.

many thanks,

Michelle.

[mariefab]

You are entitled to paid notice. How much could depend on your contract.

 

Does your contract state how much notice your employer needs to give?

Does the letter from OH state that your employment is terminated?

Does the holiday pay you've received include payment for statuory holiday accrued while you were off sick?

[REDDRAGON]

It must be a standard way of doing things within the nhs sadly you are just a number replacable at the drop of a hat.

 

Same type of thing happened with me called in for a sickness review with my manager, turned up expecting the usual "how are you "etc only to be informed that with immediate effect my contract of employment was to be terminated. That was three years ago and from that day to this have not heard a single thing from my former employer. And this is after twenty two years service so sadly if your waiting for any form of correspondance wishing you well etc I would not hold hold your breath.

[largemarge]

Thanks for you replies.

In answer to the questions; the letter from OH does not say that my employment is terminated, just that i am no longer able to fulfill my contracted duties. (if it would help, i will post a copy of the letter up).

My wage slip says; NOTICE- FINAL WAGE-58.5 HRS. which was holidays i accrued last year but not taken.

my contract just gives notice periods to be given by both sides. for employment 5 years and above, it is 4 weeks, plus another week for every year above the 5. I will have been there 6 years next month.

Incidently, prior to my period of sickness, i was working at a desk job, not in my contracted roll. I had done this for the previous 15 months, In an attempt to carry on working with my disabilities. I have never been given an ammended contract, or job description, despite asking numerous times, to be told i didnt need one.

When i went to OH, the Dr there said my manager should have supplied the pensions agency with a copy of both contract and job description, as they look at wether you are able to fulfill your contract. He was unsure as to wether they would ask for these, or because i had been doing the other role for over a year, would be satisfied that it was a verbal contract. (hope im making sense here!)

This manager has rubbed a lot of employers up the wrong way with his way of managing, one colleague took him to tribunal for wrongful dismissal, he settled out of court. I would just like to know that if he has not done things correctly there are things i an do to address it.

thanks again,

Michelle.

[mariefab]

The short answer is that your employer doesn't appear to have done things correctly and there are things you can do about it.

 

In order to discover the extent to which he has messed up, some questions for you:

 

You say in your opening post that, it was agreed that i would no longer be able to return to my work.

1. When was this and who agreed?

2. Have you received anything from your employer since June stating that your employment is terminated?

3. What is the date on the OH letter?

 

58.5 hours holiday accrued cannot be right. So, I assume that it must be for holiday accrued before June of last year.

 

4. Since last June did you request and take your all of the holiday you accrued during your time off sick?

Edited May 7, 2010 by mariefab
typo

[largemarge]

Thanks marie for for input, i havent been able to get back to you, as a blip with the internet, but ok now.

In answer to your questions,

I had an informal meeting with my manager back in october of last year, to give him an update with my condition. It was at this time he said 'would i aggree that it is highly unlikely that i would be returning to work' (i did verbally aggree) there where no other witnesses to this conversation.

I have not received anything from my employer since last june stating that my emploment is terminated.

The next contact i had with him was in march of this year, when he asked me to go in to complete the appliation for the nhs pensions agency, re my request for early payment of pension benefits.

The letter for OH is dated 31/03/10. I have received no other communication from my manager, except the p45 that he posted last week, nothing relating to him having received the letter from OH.

Do you think it would be wise to get some legal advice ?

Again thank you for your advice, it is muh appreciated,

best wishes,

Michelle.

[my-spirit-soars-free]

I would have thought that by applying to get your pension early, you have effectively retired on ill health, as your pension does not become payable while you are still employed.

 

That was certainly the case with me, working for local authority, and the termination date for my employment was the day before the start date for my pension. In my case my employer had to agree to the retirement, and they also had to pay the pension fund a nice, big lump sum - it was not a cheap, or easy option for them.

[mariefab]

Working under the assumption that you are currently just receiving ESA and not yet receiving the pension:

 

I suggest that the first step would be to get written clarification from your employer. Therefore, you could write to your manager along these lines;

 

Dear ...

 

Could you please let me know why I received a P45 and a payslip from you last week.

 

To date I have not been informed that my employment with (Company name) is terminated. So, the issueing of a P45 would appear to be premature.

 

The payslip states NOTICE- FINAL WAGE- 58.5HRS.

I would appreciate an explanation of what what this payment is for and the period you consider this payment relates to.

 

I have not received the notice pay to which I would be entitled had my employment been terminated. Nor have I received any payment for the holidays I have accrued while I have been off sick.

 

I would appreciate a written response at your earliest convenience.

 

Yours etc.

 

Send by recorded delivery and if you have an address for the HR department send a copy to them too.

 

Getting legal advice is always a good idea, but you could wait until they respond to the letter.

In the meantime you could call ACAS for advice if you like on 08457 474747.

 

Just one further relevant question for you; what does your contract of employment state regarding the amount of notice required to be given by the employer?

Edited May 12, 2010 by mariefab
adding question

[largemarge]

Thank you so much for that letter. I did consider that this would be the first step to take, but wasnt sure how to go about it.

There is no HR, it is a doctors surgery, with the 6 gp's all being partners.Would it be wise to send a copy to the senior partner?

In response to your question, my contract states four weeks notice, plus 1 week extra because i have been there 6 years next month. (1 week for every year above 5 years)

Thank you again, i will keep you informed of my progress.

best wishes.

[honeybee13]

I imagine that's the best way. Do they have a partner who has responsibility for HR, as some do? If so, you could copy them in too.

 

HB

[largemarge]

Thanks HB,

Yes there is a partner responsible for HR, so i will copy them in as well.

Many thanks.

[largemarge]

Just a quick update;

I contacted ACAS today, they said that just because he has sent me a p45, does not mean that he has terminated my contract.

They also advised me to contact my employer, asking why he sent me my p45. Obviously if he has terminated my contract, then it would appear that i had grounds for unfair dismissal.

In the post today, i received 2 letters from the dwp, wanting to know if i still worked for my employer, to enable them to update their records, as i am in receipt of WTC. Accompanying this letter was a certificate of pay and taxable benefitand tax deducted/refunded. (a p60u?) this was issued by dss/my employers initials.Does this have any relevance to my initial question?

Thanks again,

Michelle.

[honeybee13]

Hi there, I'm sorry you don't have a proper answer yet.

 

Did you get any further with the NHS pension scheme and whether they know anything about you? That make it a bit clearer.

 

HB x

[mariefab]

Accompanying this letter was a certificate of pay and taxable benefitand tax deducted/refunded. (a p60u?) this was issued by dss/my employers initials.Does this have any relevance to my initial question?

 

Yes. It seems to confirm that your employment has been terminated because a P60U is issued to the unemployed.

 

Employment Income Sources For A Previous Year (Info)

[largemarge]

Thanks Honeybee and Mariefab for sticking with me.

I have sent the letter to my employer asking as suggested, so i await his response. I shall contact acas again tomorrow, because i wasnt aware of the p60u at the time i spoke to them earlier today. Depending on my employers response and ACAS advice, i will look into claiming unfair dismissal. Of course i will keep you informed, and no doubt will be asking you for your input/advice.

I have had a letter from the nhs pensions, to say they are dealing with my application, and have written to my consultant for further info on my condition.

Best wishes,

Michelle.

[largemarge]

Hi All,

have received a response from my employer;

Dear

I was somewhat suprised to receive your letter questioning the date that your contract of employment is terminated.

You should note that in the application 'consideration of entitlement to ill health retirement benefits seen and signed by you on 23/03/10 it states likely date of termination 02/04/10.

This date was chosen

(a) the application states 'mrs xxxx' feels that even with the change from nurse to prescription clerk she is no longer able to return to her role or other administrative role within the practice.

(b) you were no longer in receipt of staff sick pay after this date.

© it provides a date for the nhs pensions agency to determine any benefits you are entitled to under the scheme.

 

You are not entitled to notice pay if you have exhausted your staff sick pay entitlement.the payment was for accrued leave whilst off work due to sickness. There is no legal right to this payment as you have exhausted your staff sickness pay entitlement, it was made as a gesture of goodwill.

If you feel you should remain in employment without pay, despite non capability to return, please state so in response to this letter.On receipt of said letter, i shall unfortunately have to request reimbursement of any goodwill payment, as this was made on termination of employment. I shall also inform the nhs pensions agency as to a hange in your circumstances affecting for application for ill-health retirement benefits.

 

I have contacted ACAS, and they have said he is right in what he is saying, except that there is a test case? at the moment regarding the issue with holiday pay payable whilst off sick.

 

Your thoughts please? Im quite confused now!

regards, Michelle.

[mariefab]

 

Your employer is quite wrong and sadly so is whoever you spoke to at ACAS.

The good news is that he has done you a massive favour by sending you that letter.

 

1. Signing an application for 'consideration of entitlement to ill health retirement benefits' does not constitute a termination of employment notice, a dismissal or a resignation regardless of the fact that it included a 'likely' date.

(The 'likely' date may have just been a field that needed to be filled in on the form. But, if a decision is made at some point by the NHS pensions agency that you are entitled to ill health retirement benefits they will probably want to know the actual date on which your employment was terminated in order to calculate any back-dated entitlement. Hopefully honeybee may be able to comment on this as she knows about this kind of thing.)

 

2. (a) the application states 'mrs xxxx' feels that even with the change from nurse to prescription clerk she is no longer able to return to her role or other administrative role within the practice.

Who actually filled in the form on 23/03/10?

Do you remember reading the passage above?

Did you sign it?

 

3. 'This date was chosen'

I guess that this is supposed to mean that the date 02/04/10 was subsequently chosen by him as being your actual termination date.

　

It is not lawful for an employer to simply pick a date and terminate an employee's employment without;

notifying the employee,

providing (and paying for) the required notice,

paying for any accrued but untaken holiday entitlement.

 

Does the date 02/04/10 appear on the P45 you were sent?

　

4. You are not entitled to notice pay if you have exhausted your staff sick pay entitlement.

Wrong. Thankfully, your contractual notice period was the same as the statutory notice period.

 

Employment Rights Act 1996 (c. 18)

 

5. the payment was for accrued leave whilst off work due to sickness. There is no legal right to this payment as you have exhausted your staff sickness pay entitlement, it was made as a gesture of goodwill.

Wrong again.

The right to continue to accrue holiday entitlement while on sick leave was decided in the Stringer case. More recent cases have established to right to be paid for it on termination. See the link below for an overview.

 

TEAM - The Employment Agents Movement

 

There is no connection between the right to payment for accrued leave and staff sickness pay in this context.

 

6. If you feel you should remain in employment without pay, despite non capability to return, please state so in response to this letter.

One particularly good point is that nowhere in this letter does he claim that he, or anyone else, informed you verbally or in writing that your employment was terminated.

On receipt of said letter, i shall unfortunately have to request reimbursement of any goodwill payment, as this was made on termination of employment.

On what date was this payment made to you?

It says in your OP that you received the payslip (stating NOTICE- FINAL WAGE-58.5 HRS) on 5th May.

If the payment was received around that date then it appears that he can't make up his mind when your employment was terminated.

The only possible avenue for him to recoup this payment is to deduct it from the notice payment that he owes you.

I shall also inform the nhs pensions agency as to a hange in your circumstances affecting for application for ill-health retirement benefits.

Rough translation- bugger off or I'll mess up your pension claim.

He's a real charmer isn't he?

 

OK.

How much of a fight do you want?

 

If you'd be happy to accept 5 weeks notice pay (from 02/04/10) and payment for your accrued holidays it should be fairly straightforward to achieve.

 

If you want more, let us know so that we can brainstorm.

 

[largemarge]

Hi All,

Yes he is a real charmer- not!

I can remember seeing the passage, and signing it, but thought that the written notice to terminate my contract would follow on, as advised by the occy health dr.

The leaving date on my p45 is 02/04/10. the date the p45 is 'signed' is 23/04/10.

My wage slip shows salary - nil

overtime (58.50hrs) 423.54.. I paid no income tax or NI on this, but 21.18 was stopped for my nhs pension.

The bottom of the wage slip says Notice -final wage- 58.5 hours annual leave.

Our pays is paid directly into the bank on the 30th of each month, this went in on the 30th April.

I have discussed this with my husband, and like you he said it sounded a bit like a veiled threat, to try to put a spanner in the works for my pension. I have made an appt to see a solicitor for this wed pm, to discuss further. Mariefab, i am going to try to send you a pm, to let you know some other background details. thanks,

best wishes, Michelle.

[honeybee13]

Hi there. I received your PM earlier about the ill-health pension, have sent you a couple of thoughts.

 

Hb x

[largemarge]

Hi all, just an up- date for you all, i replied to my employers letter, following some legal advice from a solicitor. I outlined that i realised my employment would have ended sooner or later on capability grounds, and wasnt disputing the date, just wanted the correct proceedures to be followed as regards notice pay, holiday pay etc, and asked for the monies owed to be paid by the 30th june. I fully intended to progress to filling in the employment tribunal papers,knowing that they had to be submitted by 2nd july, but wanted to see if he would send any other correspondence to help my case.

In the meantime i heard from the pensions agency yesterday, saying my application for the ill health benefit was unsuccessful. This i fully intend to appeal against as i believe the decision maker (ATOS!!!) was not given the true picture from my consultant, he was basing his report on a consult he did late last year,as well as a lot of other medical history/ details that needed to be taken into consideration. Anyway, i digress.

This evening, i retrieved a message on our answer machine, left at 5.55pm.It was from my employer, inviting me to a meeting with himself and a senior partner. he felt that the sending of letters wasnt achieving anything, he wanted to be able to discuss and advise me re holiday pay ruling etc.! he also said he had also had the letter from the pensions agency, informing him of the refusal, and i needed to discuss it with him, and he wanted to reinstate my employment, and discuss my returning to work providing my health allowed it, as i was unhappy with how things were being dealt with !! He also asked for all payments ie Goodwill payment would need to be returned.

My condition remains unchanged, i do not/can not return to work, do not intend to meet with him, shall be sending in the tribunal papers next week. I have kept the recording of the message, and my husband is in the process of writing it all down so we have a transcript.

Is there any advice anyone can throw into the ring? all advice greatly received

Have a good weekend,

Regards, Michelle.

[honeybee13]

Hi there. I don't think I would return any money I'd been paid myself, don't know the legalities though...

 

I hope your employer understands the NHS pension scheme and how ill-health benefits are assessed? I have a feeling they may not. That type of pension scheme isn't easy to understand, and these people are doctors, not industry professionals.

 

Still, maybe they think they might have got something wrong? Don't sign anything until you think about it.

 

HB x

[largemarge]

Just another up date for you all. I have completed the online tribunal form, and sent it.So for now its watch this space. I wouldnt have got as far as this without the help of Mariefab. she has been ab fab! she has put so much work into my case, and given me hope and confidence. Still awaiting the medical notes from atos re the the medial notes for the pensions people, again will keep you up to date.

best wishes,

Michelle.

[honeybee13]

Fingers crossed, Michelle, please post again when you hear something.

 

HB x

[largemarge]

Update for all,

My application to employment tribunal has been accepted, so my employer will be getting news of it this week sometime.

I had a letter from him last week, asking me to go to a meeting, to resolve my greivances and did i want reinstating seeing as my application to get my ill health retirement was unsuccessful!. I declined this meeting, having already stated my greivances twice by letter. Two further messages were left on my answer mahine last friday, requesting the same, and another letter yesterday! I think this may be bordering on harrasment now!

Have managed also to get my notes, letters etc together from my gp, so can now get on with mounting an appeal to the pensions agency.Today got notification from DWP re my ESA assessment with ATOS, i had manage to achieve the magic 15 points so can use that info to support my appeal too.

best wishes to all, hope others are having some good news as well for once,

michelle x:)

[largemarge]

Hi All

Another update;

My employer responded to the et1, basically saying that he has been trying all along to pay me all the money he owes me, but i wont go and see him!

he confirmed yesterday by email yesterday that he will be making a payment into my account 30th July, so will have to wait and see. No figures were mentioned, so at the moment we dont know wether he is paying the correct amount, ie 5 weeks notice and holiday entitlement, but hopefully i will be able to draw a line under this and move on.

best wishes,

Michelle.