Prohibited Conduct Questionnaire HELP PLEASE

[celestesmummy]

Hi,OH is currently taking his employer to an employment tribunal for disability discrimination.

 

He was deemed fit to work (with restrictions) a year ago by their own OHD and is still employed by them but is not being paid because they are claiming that they are unable to find a position for him that can accommodate his disability.

 

Because he is still employed by the respondent (and wishes to remain so because of his long length of service, high value of occupational pension etc), he can not claim unemployment benefit or secure employment elsewhere but this is causing us enormous hardship.

 

Fortunately I work full time so we can still pay the mortgage and eat but my salary can't stretch to paying for a solicitor to represent him. We tried to get one off legal advice, but all we were told is that we needed more evidence to back up the claim - which we have tried to do.

 

OH served a Prohibited Conduct Questionnaire 8 weeks and a day ago which the company responded to late last night, but rather than the direct questions being answered, throughout the questionnaire they have just referred the reader to the ET3, which naturally is a flat denial of the claim and does not clarify the position or why they have not taken any positive action to keep him in paid work.

 

Without saying too much more, the claim hinges on there having been a vacancy in the last year that he could have been placed into, with our without reasonable adjustments.

 

As he has had no access to details of vacancies in the company for well over a year, on the questionnaire he specifically asked for details of all vacancies, of every employment type (hourly paid, agency and salaried) for the period in question, including roles and responsibilities, to demonstrate whether there was (or was not) a job he could have done.

 

The respondent has flatly refused to supply this information (and other requests of a similar nature) as they claim that there is no relevance to the case and that it is an "unreasonably onerous task" - can we ask the tribunal to order the respondent to supply this information as it is critical to the success of OH's case?

 

Any assistance would be appreciated!

 

Thanks

Edited April 18, 2013 by celestesmummy
Formatting.

[honeybee13]

Hello there.

 

I see one of the forum regulars is hovering, so I hope you'll start getting other replies now.

 

I've put some paragraphs into your post to make it easier for the guys to read. If you could try to put them in, you're likely to get more help.

 

My best, HB

[ericsbrother]

They dont have to reply but it can count against them and the tribunal will undoubtedly question and make inference by it. I am betting that they see it being the cheaper option when they have to cough up. Why would they want to admit to wrongdoing?

[celestesmummy]

So we can't ask the ET to make an order for them to supply that information, even though it is the only hard evidence that supports the case?

[postggj]

LET ME GET THIS RIGHT

 

The occupational health department said he was fit for work with reasonable adjustments, i take it they had access to his medical notes from his GP

 

If the business stated they had no appointment within the business to accommodate his illness, was a duty asked to be ring fenced for him, did the business refuse to make another duty up to accommodate his condition.

 

I must say that the business are under no legal obligation to do this, but must acknowledge it and try.

How long has he been on the sick, how soon after he was off sick did they stop paying him

 

what concerns me is that you state he is receiving no pay, THEY JUST CANT STOP PAYING HIM, if his allowance is used up then it is SSP

 

WHAT DOES HIS CONTRACT OF EMPLOYMENT SAY ABOUT SICKNESS

[Emmzzi]

It isn't SSP if he is actually well. Disabled is not the same as ill.

 

I think they need to give him work to do, or early retire him with lump sum or immediate pension.

 

How large an employer is it? You have a stronger case with 1000 employees than with 10.

 

If he is not being paid I am not clear on why he wishes to remain employed; his pension should be protected. What outcome are you looking for please?

[postggj]

I was thinking along the same lines as culpability and ill health retirement

 

It does not make sense to keep him on the staff rota with no work not being paid, for what ever reason

 

This not paying him while still employed (on the books)needs explaining

[Emmzzi]

indeed squaddie - he's either fit for work or I think the term we are searching for is "on medical suspension" which is employer's choice and so paid.

[postggj]

I take it this is a large organization as you have an occupational health provider

 

do you have a trade union in the business

[celestesmummy]

Hi Squaddie,

 

Yes, OH gave them full medical disclosure, he has attended umpteen OHD appointments (9 in the past 12 months I think, at least 5 of those since being signed fit to return to work with medical restrictions).

 

OH has a generous 2 year contractual OSP allowance but he has exhaused his OSP due to the amount of time they have kept him off of work (he has been off sick since Feb 2011, had extensive physical rehabilitation for over a year, was signed fit to work with restrictions by the Respondent's OHD May 2012, OSP period expired Feb 2013). He asked for some of his sick absence to be classed as disability leave (for rehabilitation) to extend his OSP but they refused. They also stated that because the GP signed him "may be fit for work with restrictions", citing the OHD's recommendations as the restrictions, that they are allowed to continue to class his absence as sick leave so are not doing anything wrong by not paying him because the period of his contractual OSP has expired.

 

His employer is a massive company and we can not believe that there has not been a single vacancy that he could have filled over the past 12 months. He was working on a specific short/mid-term task at the time he went off sick and this job role no longer exists so he has no existing role to return to or for them to be considering for reasonable adjustments. He has never asked for a new vacancy to be created, just that he be considered for an existing vacancy within the company. He's offered to work in the post room, reception or in the security lodge, anywhere just to get back to work.

 

He has a case management discussion coming up in a couple of weeks and we just wanted to know if it was reasonable to ask the judge to order the respondent to supply the information we have asked for.

Edited April 18, 2013 by celestesmummy

[celestesmummy]

Really sorry about lack of paragraphs - I'm new to the forum and can't work out how to add them!

[celestesmummy]

Yes, the TU reps are helping with the grievance relating to the case, but this is also being unreasonably delayed by the respondent - the grievance hearing was in early February and the appeal date is in May!

[celestesmummy]

He's absolutely fit to work!

[honeybee13]

Really sorry about lack of paragraphs - I'm new to the forum and can't work out how to add them!

 

Hello again. If you mean while you're typing, try hitting the return key twice or more and see if that makes any difference. There can be issues with the forum and paragraphs, depending on what piece of kit you're using.

 

To edit what you've said after you've posted it, hit the Edit Post thing in the grey line across the bottom of the relevant post. It's in bold black, right hand side in the grey strip.

 

HB

[celestesmummy]

Thanks honeybee x

[Emmzzi]

I'd say it was reasonable to ask them to demonstrate how they have considered him for roles at the very least. And some high level details of rles at his grade or lower that have been available should also be available. However - you can;t force them to be truthful, is the problem!

[Atlas01]

This is too simple to ask but if it's a large employer would the internet not be of use as they tend to advertise vacancies

 

I can't think of a way to force the employer to disclose, in my book it's a reasonable request to ask an employer to show their vacancies for a tribunal but i have very little knowledge of them to make it anything other than my own opinion.

 

Bottom line as said many times and as you already know, a reasonable adjustment is only reasonable if the employer has the capacity to accommodate the person into a real job role that the company needs to fill

 

Something else ( a long shot) if his role no longer exists irrelevant of his condition then why have they not mentioned redundancy, i take it his substantive post still does and he is unable to return to that

[celestesmummy]

Hi Atlas,

Good point, unfortunately the respondent has had a headcount freeze for many years and doesn't generally take on permanent staff any more unless they're graduates or apprentices... over time, they've migrated the vast majority of their admin and lower grade jobs roles to temporary/agency positions, who they can 'cull' at a moment's notice to cut costs.

.

They only told OH categorically that they weren't going to find him a job just before Christmas. We've looked for agency vacancies since but they've just run a voluntary redundancy/early retirement program so at the moment there aren't many being advertised. .

.

He wasn't offered the option of redundancy. I'm not sure if there is an underlying reason for their decision not to? .

.

Long and short of it is OH wants to go back to work. Since he's been signed fit to work, his employer have done next to nothing towards finding him a position, they've refused to allow him access to vacancies for himself and they've admitted that they have never looked outside of his immediate department for vacancies because they're not prepared to transfer his head to another cost centre (because of the headcount freeze). .

.

 

He's been seeing the OHD but until this month he'd never had his abilities formally assessed, despite the OHD's reccomendations that this needed to happen. He's only ever worked for this employer. He's got 25 years service, 15 years until retirement and one of the very few final salary pensions still in existance and he just wants to be allowed to go back to work.

Edited April 19, 2013 by celestesmummy
Trying to put paragraphs in

[celestesmummy]

Sorry, forgot to say, no his old job doesn't exist any more so he doesn't actually have a job to return to..

.

Thanks to everyone for all your advice, it's really helpful.

[Atlas01]

Then i suggest he writes to them asking why when they made the post redundant they did not do the same with him, they will need to answer that

 

Not what your looking for but better than nothing, it may be worth looking for some legal advise (if you can find it at an affordable cost as they may be able to tie both into any claim he may consider)

 

I still hold my "long shot" opinion though going off the details here