Enforced sick leave

[robrhy]

Looking for help / advice on this please.

My daughter works at a care home in Scotland (17yrs). Early in 2011 doctors found she had arthritis in her spine and prescribed her painkillers. She informed her employers as they have what they call a “hoist” to move. This is a two person job one to push & one to guide. A risk assessment was carried out and it was decided it was ok for my daughter to just guide the “hoist”.

The last week in June 2012 all staff at the home had their yearly assessment. At my daughters assessment she was asked if her back was ok and if she was still on painkillers. Reply was yes to both as she had not been of with any back problems this year. Second week of July 2012 my daughter was due to start night but she had a phone call from her employers telling her not to come in as they felt she was not able to carry out her job because of her back and that she should see a doctor and be signed of work. She was also informed that if she came to work she would not be allowed in. Effectively suspending her in my view.

On seeking legal advice (Citizens Advice) she was told

1) they can’t do that

2) do not hand in a sick line

3) they have to pay her.

My daughter informed her employers of this who then told her she would not be allowed back to work until she had been seen by an independent doctor and as this could take several months she should see her doctor and be signed of, also that she would not be paid until after that.

In an ideal world she could have just said no to that but as everyone knows we all have bills to pay so she was left with no option but to see her doctor and be signed of and receive sick pay. She eventually saw an independent doctor on 2nd Nov.2012 who declared her fully fit to work. She returned to work on the 26th Nov.2012.

She has been told she can claim for lost wages as it was her employers who took it upon themselves to say she was not fit for work and would not be paid, so therefore putting her under pressure to see a doctor and be signed of so that she would some income.

Grateful for any advice on how to proceed (or not) with this. Citizens Advice say it depends on here contract.

[honeybee13]

Hello and welcome to CAG. I expect the guys will be along later with advice for you.

 

My best, HB

[robrhy]

Anyone ? Even if it's just to say "can't do anything about it"

[honeybee13]

Hello there. I'm sorry you haven't had any replies yet, but you've done the right thing by bumping your thread back to the top. Hopefully someone will spot it.

 

You say CAB told you it depends on her contract. Is there any wording you can tell us that might shed some light on this please?

 

HB

[ericsbrother]

Your daughter shouldn't have got herself signed off as they will use that for possible dismissal on capability grounds. If she was just suspended then they would have to keep on paying her mor however long it took and they couldnt do a damned thing about it. Get your daughter to get herself signed as fit to work and go back. If they then say anything get her to seek advice from the Equalities Commissioner as I'm sure their action is unlawful disability discrimination. They must make reasonable adjustments and it is clear that the safety assessment was this. If they move to dismiss they could be liable to an unlimited damages claim bby your daughter so get her back to her doctor and get the fit for work note.

[postggj]

First thing to remember is the employer has a duty of care under the Management of Health and Safety at work Regulations 1999 for your welfare. You informed them that you have a back problem and are under the care of your GP. Following on from that they have carried out a risk assesmant and adjusted your duties where sugested and adopted the work plan.

 

If the employer was in a sense informing her not to come into work until an indapendant doctor or occupational health had done an examination as to her capability, thats fine as long as it is with full pay.

 

In a sense, garden leave, staying at home with full pay (enforced)

 

If they considered her back was still a problem, they should have done another risk assesmant prior to this action to establish all the facts in the interest of both the employer and employee.

 

To say seeing an indapendant doctor could take months is fine as long as they are still paying you full wages as you are not on sick leave, this is a forced absence by the employer

 

The problem you have is that i believe you are time barred from taking a claim to an Employment Tribunal. This needs to be done within three months less one day from the cause of action, that would be july 2012. Your employer has been very cleaver in my opinion and your only recourse now would be through the civil courts for redress

 

The four months delay in seeing a company doctor is totally unexceptable, but as stated, your options are limited due to the time baring through the employment tribunal service

[2Cat]

I recall seeing something on Medical Suspension on direct.gov.uk. If I recall correctly, employee should be on full pay for the period of investigation.

[robrhy]

Thanks for the info squaddie.As they say "hindsite is a great thing".

With hindsite she should have went back to CAB earlier and maybe found out about an Employment Tribunal and the time limit. I do feel CAB let her down because when she first saw them, although they let her see all the relevant employment rules saying here employers were wrong in the course of action they had taken,they never mentioned that she could take them to an Employment Tribunal.

I also found out it takes about 24 weeks for an E.T to make a decision, so without "sick pay"she would have had no income for the period. If she had opened a claim would the fact that she was on "sick pay" have made any difference ?