Mum's problematic journey may end in incapability dismissal??

[pxb]

Hi... I need some help and advice if possible please for my mum... I will try to keep it brief but it is a bit of a story!!

 

My mum has suffered with Fibromyalgia since 2006 and has been working at a care home as a Care Assistant since June 2008. She declared this upon employment so they have known about her condition, which she had been managing very well, since offering her a full time contract.

 

In October 2008 my brother was killed in a car accident which in turn with all the stress, made her condition a lot worse over a short space of time. She struggled through my brothers funeral and returned to work after only 2 weeks off. However, in May 2009 she was signed off as unfit to work due to her grief reaction and her Fibromyalgia, which had deteriorated massively. I have managed to get her DLA and ESA for the time she has been off but for the last few months she has felt she had improved enough to try to return to work and our GP advised her to give it a go.... she has always wanted to return to work as she really enjoys her job.

 

We were only contacted twice (both times in 2009) between the the time she was signed off in May 2009 until the beginning of February 2011 by the company's Occupational Health Dept and HR Management who came to the house to see her when they explained that this would be done on a regular basis as it is their policy... we never saw them again after the second visit in November time 2009 and the only other contact we have had has been with the Home Manager instigated by us to try and find out what was happening between January 2010 and January 2011. We advised the HR Manager on the last visit that we would be moving house the following month and he advised us to complete the necessary forms, which we did. Soooo, we notified them in person and on their 'special form' as soon as we had moved. Mum has received a wage slip from the admin at the home so we thought it all was done...

 

Move on to January 2011... still no written communications or visits to check on mum's progress although we were still phoning the Home Manager every month or so to find out what was happening only to be told, just wait and see. We were unhappy about the lack of contact her employers (who are a massive firm!) and mum got to the point where she was fed up of doing all the running around and was quite upset at the lack of communication. We took some advice and were in the process of starting a Grievance about this against the company at the beginning of February 2011 when the Home Manager contacted us out of the blue and asked why mum had not attended her Occupational Health Review the previous week. We explained that we have had no letter or telephone call advising us of this appointment and in fact had had no written or telephonic communication from the Company, other than the times we had contacted them. The conversation was very unpleasant and the Home Manager did not believe that we knew nothing about the appointment!! I pointed out to her that in fact, we had had no written communication since the end of 2009 from the Company,and that any communication we had had with her was instigated by us. After insisting that we had not actually received the letter they did some investigating and eventually picked up that on mum's record was our old address... this had been changed at the home level but not on their computerised system so they had been sending all correspondence to our old address, despite us notifying them of our change in address at the end of 2009 in person and on the 'special form'. We thought our letters to their Head Office had just been ignored and it appears that they may not have been but we didn't get any reply for this reason (our letter had our new address on the top but apparently they go by the file address).

 

After all that was sorted out they rearranged her Occupational Health Assessment quickly and the doctor agreed she could try to return gradually. We attending the home last week to meet with the Manager and a HR Manager who explained that she could only try to return and see how she gets on BUT that due to her role as a Care Assistant, no adjustments would be able to be made (ie if she could not operate a hoist then she would be unable to return to that role). I went to the meeting with her and explained that adjustments should be able to be made as she is covered under the DDA but they insisted it was not reasonable. Mum wanted to try so she returned this week. She has had to come off of her ESA because she was going to be paid her full wages upon returning for recuperative duty and started back this week with refresher training, health and safety etc.

 

This morning she has phoned me in tears. They have been doing manual handling training on each other and she was asked to bend to the floor as if to put on slippers... she attempted this twice and fell over and had to be helped up. Of course she wouldn't want to put anyone else at risk and understands that this is what the company need to establish but is now fearful that she will be dismissed on the grounds of incapability, as this is what they told her would happen if she couldn't manage the manual handling, although she can manage many of the other tasks that is part of the role.

 

(Thanks for reading this far, only the questions left now ) So if mum is dismissed on grounds of Incapability, what would she be entitled to and is it better for her to wait until they do this or hand her notice in? I left my previous role after 8 years due to my own ill health as they were talking about dismissing me on grounds of incapability and I didn't think that would look at all good on my CV but I'm wondering if I should have waited to be dismissed, and I don't want her to make the same mistake if she may be entitled to something??

 

Thanks for reading and apologies its so long but I wanted you to have all the facts and info!!

[SarEl]

I am sorry for what you poor mum has been through. But I think that I have to concur with the company in so far as her current role would appear not be be suitable for adjustments. This does not mean that she in inacpable of any role - and they must first determine whether there is any other role that she could be moved to before seeking termination on capability grounds. So I think she should wait it out and see what happens. In situations like this, termination on capability grounds is not like dismissal for misconduct. There are certain jobs that she could not now do, and that is simply a fact of life. It would not affect either her reference or her seeking work that is more suitable. I would suggest letting it play out and see what the company do, but doing so as amicably as possible to preserve that reference in good order. A good reference is worth gold, and they obviously have some regard for her and her situation or they would not have hung on for two years or let her try to return to work - many employers (especially in this sector) would have gone for capability many moons ago! Things may have gone wrong in admin (and postal re-direction would have helped!!), but they do not seem to have acted as badly as I would have expected given the circumstances. So I would suggest talking to them about any possibilities for redeployment - and come back if you have any worries about that.

[pxb]

Thank you for your quick reply SarEL.

 

I totally agree that her employer have been excellent as far as keeping her slot 'open' for her to try to return and that is not at dispute at all... she is very grateful for that and knows the issues and upset I had with my ex-employer. We have touched over the redeployment issue very lightly but they only seem to have roles available working in the kitchen, which they and mum have dismissed already as she cannot grip a knife. This is why I jumped straight to the dismissal question (sorry, I did miss that out on my original post ). We did have postal redirect for 6 months after we moved which ended in May 2010... saying that, I don't think we had any letters from them otherwise we would have picked this up and mentioned it to the home admin lady.

 

She is just about to return home now after this morning so I will see what happened and explain the above to her. Thank you once again

[SarEl]

I realise that this is very distressing for her. But in the end it may be for the best if she cannot manage the clients needs. She would be equally distressed if she had an accident injuring herself or a client. It does not mean her working life is over. She could get advice from a disability specialist at the job centre. I ahve heard some good things about these staff, and I am sure they would be over the moon to have clients who actually want to work! Not that I am suggesting people with disabilities don't want to work at all, before Papasmurf lambasts me. Just that there are those who claim disabilities to prevent them from having to work.

[pxb]

I have explained what you have said above to her (she's just come home and she's feeling a little less stressed about it all but still upset and 'defeated').

 

The nurse who was assessing her today is going to speak to the home manager to see if they can get a job created for her that involves resident care insofar as doing their hair, feeding them (the have utensils that mum can grip for residents who have similar issues already), giving bedridden residents drinks, make up for those who want it and there are a few, etc as the way she sees it, mum seems to be OK and perfectly capable from the waist up BUT it is up to the Company to say yes or no as there is no such role at present. If not we will follow your advice and see what else we can find for her. Thanks once again

[Atlas01]

From what you have put i think your doing a grand job of supporting your mum and keeping rational about this. The employer has to look for "reasonable" adjustments the key part being reasonable! If your lucky they may agree that pulling apart certain tasks can create a workable post for her but it will need to be a full days/weeks work for her if this was to be a permanent arrangement. In addition they will also be mindful of the precedent set as your mother works in an industry i know pretty well and one of the downsides to the job is i leaves most of the more "senior" ladies knackered physically as they come towards the end of their career (hoists,glide sheets etc are a pretty new thing as it was all manual not too long ago)

 

her employer will be wary of opening up a door where other staff members say "well you did it for her...." which is something i've found in my experience.

 

i think you have two thing to concentrate on now as your mothers condition is certainly not helped by the stress of this issue. the first is whether there are enough non risk duties to fill an actual post, does the employer have other jobs she could do that are open (admin for example) they have done more thsn they probably need to and a dismissal on medical grounds may well be easy for them to instigate now.

 

the second and possibly more important one is you getting your mums head around the fact it may be time to say goodbye to this work, i've represented many carers where my only real job was not to find or force them into other work/duties but to councel them into accepting the game is up do to their medical conditions.

 

good luck, your mum sounds like she could do with this being over wheter that be a new job or simply letting the current one go.

 

as sarel said she should however wait for them to terminate her employment, she may even receive a letter stating they intend to terminate and she can waive her right to attend. i'd always recommend she goes simply because if she has come to terms with not being able to do the job she can use it as an opportunity to "thank" them for thier support and leave a lasting impression of a nice lady that things did not work out for which will help if a reference is ever needed

[pxb]

Thank you all for your advice and reading... I will keep this thread updated as and when we get some idea of what is going to happen