Jump to content


style="text-align: center;">  

Thread Locked

because no one has posted on it for the last 3277 days.

If you need to add something to this thread then

 

Please click the "Report " link

 

at the bottom of one of the posts.

 

If you want to post a new story then

Please

Start your own new thread

That way you will attract more attention to your story and get more visitors and more help 

 

Thanks

Recommended Posts

Hello,

this is my first visit to the CAG and I am hoping for some advice.

 

To cut a very long story short I injured my back at work in April 2006. Government employer would not support it was an injury at work even though went through all the right channels.

 

Carried on working, taking sick when I was in so much pain I couldn't walk. Placed on sickness monitoring twice, had occupational health referrals, placed on final written warning in November last year. Had to take 2 days off in March and was told by line manager she had sent report to big cheese moving for dismissal on capability grounds (due to sickness not the quality of my work when at work) and I would hear in a couple of weeks..... then nothing.

 

Basically referred to Occ Health again in August who say my back condition falls under scope of DDA.

 

Wont bored you with the ensuing situation but would like experiences/advice/thoughts on the fact that the DDA effectively kicks in after 12 months (am paraphrasing, I know there is more to it). As it was clear from my sick absences that this was an ongoing condition should my employer have recognised this earlier, should the occ health advisers have known/mentioned it? It is vaguely alluded to as a 'grey area' but nothing really explicit is asked for or mentioned in the reports.

 

Sorry, that was waffly - basically should my employer have been considering it applying once my condition had gone past 12 months.

 

Phewww, hope that makes sense!

Hx

Link to post
Share on other sites

  • Replies 146
  • Created
  • Last Reply

Top Posters In This Topic

Top Posters In This Topic

Have you ever, prior to being referred to Occupational Health, made the employer aware that you had a condition which you believe was considered a 'disability' which might be covered by the DDA?

 

There are several aspects to your case. The DDA does not apply only after 12 months have elapsed - to be considered to have a disability which fall within the scope of the DDA (or more recently the Equality Act) one should have a condition which has lasted, or is likely to last more than 12 months, and which has a substantial and long term effect on your ability to carry out day to day tasks or activities. The DDA could therefore apply much earlier than 12 months. The employer is required where such a disability is concerned to make reasonable adjustments in order to enable you to remain in work, but these cannot be made if the employer is unaware that such adjustments may be necessary.

 

You say in your OP that the employer should have known that this was an ongoing condition, and whilst this may be true and OH could have raised the possibility of this being a disability at an earlier stage, did you ever make it clear that you considered your condition a 'disability' and were any adjustments discussed which might have reduced the level of sickness absence?

 

You also need to consider that a 'reasonable adjustment' would not necessarily include excusing regular sickness absences, and the DDA does not mean that an employer cannot take disciplinary action for this. A 'reasonable adjustment' would mean that medical appointments or time off for ongoing treatment should be accommodated (where these cannot be scheduled for non-working hours) outside of any routine absence monitoring, but it does not mean that you cannot be considered for dismissal on capability grounds, although an employer who is aware of a disability and moves to dismiss without firstly considering reasonable adjustments would be wide open to a claim of discrimination.

 

Therefore, your OP makes sense up to a point, but there needs to be more detail in order to say one way or the other whether the employer has been acting unreasonably.

 

Certainly if the OH has now stated that your condition is, in their opinion, a disability, then the employer should be looking at ways in which your working conditions, hours, place of work, workstation etc may be adapted to minimise any deterioration, and if this isn't happening then you should raise a grievance to that effect. Of course if adjustments are not possible for good reasons then you might still be deemed incapable of performing your role, but th eprocess should still be followed of exploring all possibilities.

Any advice given is done so on the assumption that recipients will also take professional advice where appropriate.

 

PLEASE HELP US TO KEEP THIS SITE RUNNING

EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

DONATE HERE

 

If I have been helpful in any way - please feel free to click on the STAR to the left!

 

Link to post
Share on other sites

I would add that (a) I wouldn't always believe what OH say! and (b) what the condition is is very relevant here, and that is the detail you missed out. I am assuming that it may be back problems - and back problems are one of the greyest areas of the DDA, and are generally excluded from its provisions (not always, but very often). This is one of the reasons why the "12 months rule" isn't straighforward - a bad back may cause periods of limited mobility etc., but may also have significant periods where it does not affect "day to day activities" within the scope of the legislation.

--------------------------------------------------------------------------------------------------------------------------------------------------------------------

I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

--------------------------------------------------------------------------------------------------------------------------------------------------------------------

Link to post
Share on other sites

. Hi,

 

Thanks for the replies.

 

I have to be careful as it would be very easy to identify my employer and then for me to be identified,

 

My initial injury happened as a result of a task which is done no other way in everyday working life than the way I did it.

 

My first OH referral occured after my return to work after a month off. In every return to work interview my line manager was kept abreast regarding medication I was having to take to exist on a day to day level. MRI in 2008 showed multiple prolapsed discs and ddd. Kept employer informed. Recommended for injection initially but told surgery may be possible outcome. Told employer needed injection and may need day or two to recuperate. Four days later meeting held and put on stage 1 for poor attendance. Worried sick about this so canx injection. Stupid me.

 

It was at this point things really started going downhill with employer. Line manager sweet as pie and supportive to face. Used sickness to give me less effective box marking as ' I couldn't see the effect it had on the team when I wasn't there' and that my sickness 'let the team down'. Upto this point my sickness had been around the 10 to 13 days off a year.

 

I had gone into work when I shouldn't, I had walked round at work clutching a hot water bottle to my back, I had struggled with the side effects of medication.

 

In October last year during my half year review my line manager told me i was 'less effective' despite having volunteered and completed with flying colours two big projects, having a better day to day record than many colleagues and being more flexible (no pun intended). I was also told I needed to attend a stage 2 meeting - final written warning- as I had taken 3 days off with swine flu and 2 days off with lady issues (notes in a previous OH report saying I may occassionally need time off with it).

 

This all took it's toll and I ended up having a depressive breakdown and was off work for 6 weeks. I only returned to work due to pressure exterted by line manager. Was nowhere near well enough. Had return to work interview and stage 2 confirmed. Just agreed to everything as was unwell and felt really stressed being in company of this person. Can't go into detail, but it wasn't a welcome back interview I was chastized and made to feel really bad.

 

So persevere even though depression is awful and back giving me constant pain. In heavy snow/icy conditions is Feb I slip over walking to end of road (road impassible) only to get to work and find people who live closer have called in saying they wont be coming in due to fear of slipping. Know I would have been hauled over coals if I did this. This slip really aggrevates back condition. Take 2 days sick in March and we are back to the beginning of the story.

 

Well done if you have hung on this far!

 

Right from the off employers knew I couldn't function without meds. Reasonable adjustment recommendation in 2006 of personal chair ignored as not practical in current working environment. Employers known I unable to 'function' without meds from very early on.

 

Does that all make sense? Is that yawning I can hear?

 

All input helpful.

Link to post
Share on other sites

Do you have a trade union rep

 

were you accompanied during the stage 1 and 2 warnings

 

have you had the report back from occupational health

 

most occupational health staff are no more than quacks and have no formal medical qualifications, they get around this by calling themself

 

health care professionals

 

employers use these reports as a way of issuing stage warnings even though they have no basis in fact

 

its your doctors opinion that counts, no one else

Link to post
Share on other sites

No yawning. But I am afraid that I cannot see that you have a DDA clain here since it would appear that nearly all of your sickness is unconnected with the injury you sustained. Swine flu, "lady problems" (and no matter what your OH report said - it doesn't mean it gets treated any differently than any normal sickness) and a depression are not related to a back injury. And six weeks depression on it's own also doesn't count for the DDA.

 

What I am not clear about is that you appear to be saying that your first stage warning occurred in 2008 - surely that should have lapsed by now if you are only now being put into stage 2?

--------------------------------------------------------------------------------------------------------------------------------------------------------------------

I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

--------------------------------------------------------------------------------------------------------------------------------------------------------------------

Link to post
Share on other sites

Hi,

 

I'm sorry if I am not making myself clear - swine flu and female issue were the only two reasons other than my back why I was off sick.

 

I had gone through stage 1 and passed it, then was off sick with my back again and put back on it, and then more back problems and two days female issues so stage 2 implemented and then 4 months into the stage 2 I have two days off with my back and I am told report being put forward recommending my dismissal on capability grounds. No copy of this report given to me even though letter said it would be. This was 9 months ago. Interesting as no-one has ever critised my work whilst I am here.

 

Depression has now been going on for a year. Occ health Doctor attributed chronic long term pain as a contributory factor with depression. Am still being treated for it. Never underestimate how depression saps ever ounce of life from you.

 

So if I understand correctly - even though the injury that had created the disorder occured in 2006 and having had numerous Occ Health referrals since then my employer had no duty to look at my disorder at any point as falling under the DDA even though they knew I had to take medication to perform my job?

 

Just want to be clear in my own mind about this.

Link to post
Share on other sites

I should also add I had another accident at work which exacerbated my back condition 6 weeks ago and not one of my managers asked how I was on my return (two weeks off barely able to walk). Wised up this time, got photos, did accident form on day of injury, though investigation was 'thin' to say the least!

 

It's a horrible mess - 2 injuries at work, a serious underlying medical condition, ten different types of medication, a less effective box marking after ten years of being a good performer, a line manager who lacked impartiality, accuracy and failed to keep certain information confidential, 9 months of not knowing whether to expect dismissal at any point.

I hope you can understand why I am at the end of my tether.

Link to post
Share on other sites

I didn't say that they had no duty to consider it - what I said is that based on a few posts it would be impossible for me to say one way or the other because this is a grey area in the legislation, and being on medication isn't the test. Back problems are often excluded. When assessing disability claims of this sort we have to obtain independant medical opinion because it is not straighforward. But as Sidewinder told you, even if it does qualify, that does not mean that they must change the managing sickness absence procedure used. For some obscure reason this myth has grown up and will not go away. It may be an appropriate adjustment - but it also may not be "reasonable", and in the end only a tribunal can decide that.

--------------------------------------------------------------------------------------------------------------------------------------------------------------------

I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

--------------------------------------------------------------------------------------------------------------------------------------------------------------------

Link to post
Share on other sites

Have seen so many doctors, consultants and specialist. The Occuational Health Doctor has said my disorder is classed as a serious underlying medical condition and it likely to fall under the DDA. This was August 2010.

 

I am hoping that raising a grievance will at least get an 'oops, sorry' from my employers, and an Emloyment Tribunal can be avoided.

 

I will just ask them as employers why they didn't consider it before.

Link to post
Share on other sites

Have seen so many doctors, consultants and specialist. The Occuational Health Doctor has said my disorder is classed as a serious underlying medical condition and it likely to fall under the DDA. This was August 2010.

 

I am hoping that raising a grievance will at least get an 'oops, sorry' from my employers, and an Emloyment Tribunal can be avoided.

 

I will just ask them as employers why they didn't consider it before.

 

I am sorry, but you are jumping the gun. As yet you have absolutely no cause to go to an employment tribunal - or at least not one that stands a chance of winning. If your condition falls within the scope of the DDA - and OH are neither qualified to say that it does, nor did they say that it does; because you have said it yourself, they only said it was likley to - then the earliest that your employer could be expected to know of this possibility was August/ September when they received the report. There is utterly no way that you could claim that they ought to have known earlier - you made no claim to them of a disability; and there is no reason to assume that a bad back is a disability because it more often does not qualify (assuming yours now does). Even had the employer known earlier, or could have been expected to know, capability processes can still be conducted. You have had a very large amount of time off sick, and having a dsability does not mean that the employer has to carry such sickness rates. There is neither an absolute nor an automatic right to extra time off sick because you have a disability.

 

By all means, if you think you have a grievance, then raise it. Such a process may clarify evidence should you require it. But make no mistake - disability or not, high rates of sickness are a justifiable and fair (in law) reason to take capability proceedings, and you have no right to in law to high sickness rates. In the end, whether they give you a "let" this time or not, continuing high rates of sickness absence will result in dismissal and no tribunal in the land is going to say that an employer must retain staff if they are constantly off sick. The DDA does not prevent an employer from dismissing and nor was it ever intended to - it is only aiming to level the playing field by giving employers an obligation to consider reasonable adjustments to enable disabled people to work, not to give them rights over and above those of non-disabled people.

--------------------------------------------------------------------------------------------------------------------------------------------------------------------

I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

--------------------------------------------------------------------------------------------------------------------------------------------------------------------

Link to post
Share on other sites

Thanks for all the input.

 

It is hard to put four plus years worth of reports and recommendations on here without identifying myself/employer.

 

I think that their failure to make (in the OH docs words) a reasonable adjustment of my chair in 2006, followed by a nurse saying that DDA was 'a grey area' in reference to my back, followed by the recommendation of another OH doc that an individual risk assessment should be carried out but it wasn't (FEB 2010), followed by being told that you are going to be dismissed (March 2010) and then waiting until JULY for the company to get another OH referral together (obligatory in dismissal on grnds capability), the recommendations being made in Aug that I am likely to be covered by DDA, followed by no further company decision and here we are in December.

 

I think it is fair to say that they are failing in their duty of care to minimize stress in the work place. They know I am suffering and being treated for depression.

 

I also think it is fair to say these are reasonable grounds to raise a grievance.

 

I am not a HR whizz or anything like that but I would expect my employer to be more aware of legislation than I am. I am just an oik on the floor.

 

I am not after money or anything like that. I just want the opportunity to have treatment without line managers telling me I would be 'letting the team down'. Even my own Union rep says I have been too nice about everything.

 

Potentially I have to face the possibility that my surgeon may say it is impractical for me to continue in my roll - but I'll cross that bridge when I come to it!

 

It's all fun, fun, fun - NOT!

Link to post
Share on other sites

  • 2 weeks later...

Hello again,

 

Can anyone tell me any more about medical severance after a 4.5 year injury and 10 years in service.

 

It has been quietly suggested to me that I should look into it as a possibility and after a particularly traumatic episode this week that resulted in hospitalization I think it is time to look at other options.

 

I work for a branch of the civil service.

 

All help appreciated.

 

Hx

Link to post
Share on other sites

You are civil service, and there are very specific rules around this for this sector. As you would expect from the civil service - there are comprehensive (and sometimes incomprehensible!) rules books for everything. The first point of query would have to be the employers HR - different schemes apply at different grades and different sectors within the civil service.

--------------------------------------------------------------------------------------------------------------------------------------------------------------------

I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

--------------------------------------------------------------------------------------------------------------------------------------------------------------------

Link to post
Share on other sites

It was initially asked of me by my Union rep after I was off for 6 weeks last year. At that time I said I didn't want to do that.

 

I was so sure that I could make myself ok, I could cope. I have no-one else to rely on to pay the bills so it just didn't seem a do-able idea. And financially it still may not make sense.

 

But after being hospitalized with a unrelated but not unconnected issue that required me to go cold turkey on all my pain tablets for the first time in years, and I do mean years, I had some clearness of mind. My health is more important.

 

I could move to another role within the organization but I will be having surgery early next year that requires a potential 3 month recovery, plus follow on therapies with no guarentee the problem will be completely cured or wont come back.

 

Even an office job would not be appropriate as seating is nigh on impossible at the moment (lay or stand). Even at my best sitting really agrievates my condition.

 

I have wracked my brain and that covers what roles I could be offered.

 

It was quietly mentioned to be by a manager in another dept of civil service unofficially.

 

I am at my wits end. My initially injury can from an accident at work (unsupported by them) though I am going to appeal.

 

I just want the opportunity to get well without excessive pressure, and to provide value for money.

 

:-(

Link to post
Share on other sites

Go back to the union. Ask them to make enquiries and explain what it would mean for you. Then if you have specific questions you could come back and pose them, and see if we can help.

--------------------------------------------------------------------------------------------------------------------------------------------------------------------

I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

--------------------------------------------------------------------------------------------------------------------------------------------------------------------

Link to post
Share on other sites

Thanks,

Am at work tonight so expect a rather terse email from the Union as I emailed them on my last set off shifts saying all the pussyfooting around - since october last year - had to end .. things have got worse rather than better.

Being in hospital did it for me. My job involves searching things and at the moment I can't even put my socks on without an aid my 73 year old mum gave me. Doing up my boots will be excruiating painful.

 

Sorry. Whinging. Just at end of tether.

Link to post
Share on other sites

Quick Update

 

Spoke to a rep at the local Union branch (not my usual one - who is looking after his wife) and outlined everything (knows a fair bit as we used to be on the same team). He said that Medical Severance was getting harded to qualify for unless you were never likely to work again.

 

I feel stuck. I can't do my current role, and within the organization at this time I am not sure there is anything I could do to provide genuine 'value for money'. I have treatments and ops looming that I will need a fair time off for. There is no guarentee these will work. Top it all off with depression and it's all getting a bit too much.

 

Please don't read me wrong, I love my job - or did before it hurt to do it- and would love to find someway of making myself useful. But I can't even put socks on without an aid, pick thinks up off the floor/out of washing machine/tumble drier without an aid, carrying things over 2-3 kilos is too much (job suggests we should be able to life 12-15kilos). I can't even safety carry a tray with a few drinks on.

 

I have my medical notes etc that show I have gradually had to use more and more painkillers to 'get through', and my sick record shows that I have had to take more and more time off. I am embarrassed by that.

 

I suppose I was just hoping for the freedom to get well and recover without being constantly harrassed by my employer.

 

Any thoughts?

 

Hx

Link to post
Share on other sites

You won't know until you try? It seems the most obvious thought. As things stand, the worst they can do is refuse - in which case your situation is no better and no worse.

--------------------------------------------------------------------------------------------------------------------------------------------------------------------

I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

--------------------------------------------------------------------------------------------------------------------------------------------------------------------

Link to post
Share on other sites

Hi,

On reflection that was the conclusion I had come to. I do all I can at work but that is getting less and less. I suppose if they are content to pay me to do less and less so be it. But really it has got to the point where all I can pretty much do is hobble from one point to another (and that potentially can be dangerous as I currently work amongst moving traffic some of the time). I take 3 pain medications to be able to do that. I presume I cannot be penalized for not taking stronger meds.

 

What a mess.

Link to post
Share on other sites

  • 2 weeks later...

I have *lots* going on at work.

 

I keep getting sent home as I cannot fulfill my duties due to an injury (likely to be covered by DDA according to Occ Health doc) - but turn up in order to see if there is a duty I can carry out.

 

Tied in with this I have asked to be considered for medical severance. Wont go into detail as to what I can't do as it is embarrassing.

 

The final thing is I plan to pursue a personal injury claim as I had a 'slip' as work with my employers being responsible for several contributory factors. It has severely exacerbted my serious underlying medical condition.

 

My Union rep is always hard to get hold of, seems more intent on keeping management 'onside' and doesn't seem to listen to what is important to me. All this makes me think I should use someone Independent for this part of my dealings with my employer.

 

I suppose what I am looking for is any advice as to whether I am making things more complicated for myself, or whether this division is a responsible thing to do?

 

Any thoughts?

 

Hx

Link to post
Share on other sites

This does sound very complicated, so I am sure it is important to try and keep it simple.... the law likes simple / clear cut issues.

 

You seem to have two legal areas that are overlapping at present a PI claim and a potential ET claim under the Equality Act 2010 (DDA now defunct) but that seems to be further complicated by you wanting medical severance.

 

The PI claim is not straight forward because the injuries complained about are merely an aggravation of a previous injury, so you first problem there is to get a Doctor on side to clearly define what is down to the old injury and what is down to what the employer has negligently caused. That requires expert evidence. Any liability would have some sort of contributory contribution deducted from the previous liability. The thing in your favour that any losses attributed to the employer part of the injury is recoverable, including future loss of wages / pension. However you are making it easy for the employer by saying you want medical retirement, so I suppose the employer would say that they were only complying with what you wanted and so no loss of wages as resultant??

 

The ET side of things seem to revolve around a failure to adapt you work environment to your disability. You presumably want to work but are unable due to the employer not helping you to remain in work, hence you seeking medical retirement. Personally I would not be asking for this, but wait for the employer to make an overt act by medically retiring you or sacking you on capability. Then you could make an ET claim under Discrimination legislation.

 

If that happens then you would have a choice to make whether to proceed in the ET or the County Court. If that happened you would need expert advice as to where to issue proceedings. If you issued in both you would only recover once, double recovery is not allowed. So a judgement would have to be made as to where best to proceed and that is a legal judgement call as to where you would recover the most.

 

Union v private..... I am biased I have not had much good luck with union lawyers, although I don't think it is the lawyers at fault but the unions and their ability to further their client's interests. Many Cagger's will agree I think, although some may say it is best going the union route because at least the union pick up the bill, especially in the ET as expenses are recoverable in the county court.

 

So, without more information about the circumstances, I would say keep it as simple as you can and don't resign until they kick you out.

Link to post
Share on other sites

Thank-you for taking the time to reply.

 

As I said it is very messy.

 

Regarding the medical ill-health retirement - As I am only 38 I suspect it *may* be rejected but this is the most important thing at the moment. I have requested this off my own back, and I understand it works on the basis I am unlikely to work again before normal retirement age. This scares the hell out of me but the operation to help my problem seem to be fully effective in only a few cases. I've already had lots of non-surgical treatments. I hope that the Union will support me when I finally get to see my rep. :x I would rather avoid being sacked but as they are pushing for me to be 'off sick' rather than trying to find out what I can do I wonder if sacking on the capability route is the way they want to go. I am sure there is something somewhere which said that employers had to assess whether someone came under the criteria of ill-health retirement prior to dismisising on capability grounds.

 

I think it is probably best I hold fire on the PI claim. I have photos and a H&S rep report (produced unconnected to my accident) that helps support causation, and med support that I experienced new pain since the accident.

 

I am just a bit disappointed in the level of support / presence of my Union rep. I think my subs cover legal fees so I guess I can use a solictor of my choice but will have to clarify that.

 

Sorry to waffle.

 

Hx

Link to post
Share on other sites

 Share

  • Recently Browsing   0 Caggers

    • No registered users viewing this page.

  • Have we helped you ...?


×
×
  • Create New...