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Work trying to get rid of me after knee op. *Settled Out Of Tribunal*


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Hi all,

 

Still having problems with work and trying to get my job back.

Im still employed, currently on gardening leave pending reports on my knee from Occupational health.

Im having major issues with the process. I've been off some time, my operations didn't go to plan,and had subsequent corrective surgery and steroid injections. I've finally been given the 'all clear' but occupational health have said Im not fit to do my old role.

I have a letter from the surgeon stating he would put not restrictions on my return to work, I also have a 'fit to work' note from my GP.

My work involves a lot of standing, but the occupational health person said I have to be sat most of my shift and cant pick up anything over 10kg. Its patently wrong, but as she has a medical qualification, they're going with her assessment.

I've spoken to my union guy, who said 'Well, you've have had a good run on the sick, so you should be happy they haven't got rid of you before now'

I feel as though things are slipping out of my grip, even though I've presented much information to contradict the Occy healths assessment, they gave me a 'figure' last week of what I'd receive if they did 'medically retire' me.

Its a well paid job and its kind of hit me like a ton of bricks, to finally find out I'm well and my employer is offering exit packages.

I had cancer prior to this and came back within three months of radio therapy so I'd not lose my job, now I feel like just giving up and crawling under a rock. :|

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Happened to many of us after major operations and employers who are more than aware of possible problems due to recent operations, I had the same, I was on good money per week then after Heart attack at work and stemps fitted, boss refused to allow back to full time and hours cut right down to 16 from over 48+ hours per week, since then I have had hip replacement operation and to be honest could not do length of standing/lifting any more , but luckily I am retired now, but still remember the problems thrown up at the time & continue even now!

:mad2::-x:jaw::sad:
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Thanks Mike.

But the disability act 2012 was meant to protect workers from this sort of treatment. I've done nothing wrong. I've followed works procedures whilst on sick leave and complied totally with medical disclosures.

Now Im well, work isn't there for me.

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Is it disability discrimination if an employer ,who doesnt pre screen employees, decides to bar you from a job you've had for five years on a perceived impediment?

 

I've been given the all clear by everyone medically, but if the employer insists I cannot do my job, isn't that disability discrimination?

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Hmmm ok

first of all

 

You will need to be able to argue that you are covered by it before being able to use it in this case.

 

https://www.gov.uk/government/publications/equality-act-guidance

 

http://www.equalityhumanrights.com/your-rights/equal-rights/disability

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The SabreSheep, All information is offered on good faith and based on mine and others experiences. I am not a qualified legal professional and you should always seek legal advice if you are unsure of your position.

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Also you will be refering to the single equality act 2010 which came into force in 2012 that merged all the other discrimination law into one lump thing

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The SabreSheep, All information is offered on good faith and based on mine and others experiences. I am not a qualified legal professional and you should always seek legal advice if you are unsure of your position.

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The problem as I see it is that you are arguing on the one hand that you are NOT disabled (as defined by the Act) and the employer is claiming that you are?

 

The Equality Act states that a disability is a physical or mental impairment which has a substantial and long-term effect on your ability to carry out normal day to day actvity. The employer would seem to be erring on the side of caution here in the face of information from your own medical team that you do not need any special considerations in order to return to work in that their OH is saying that you DO need an adjustment to your role. This may be for safety reasons or for operational reasons, both of which could well be valid. In those circumstances they may well believe that a settlement to medically retire you would be preferable to finding an alternative role which may not be suitable.

 

I am not saying that either side has the upper hand here. It does seem bizarre that you want to work, are (on the face of it) fit to work but that the employer is not willing to allow you to work, but as I say there may be other considerations here - with the added risk that there may be a further long period of sickness if you were to suffer a relapse. A very useful thing to remember is that any employer exists to run a business, and periods of absence are often inconvenient and expensive. Whilst the Equality Act affords a certain protection in terms of the disabled being forced to work in conditions which may exacerbate the disability, and also to allow the disabled access to work where it might not otherwise be an option, it does not give the absolute right to continue to work. The Act requires only that 'reasonable' adjustments should be made, so if this is not deemed possible, and the employer can demonstrate that suitable adjustments were considered but dismissed for reasons A, B and C then you can be managed out of the business - usually on grounds of capability or as here, by considering retirement on medical grounds.

 

My advice would certainly be to keep fighting by whatever means you can - try to prove that you are capable of performing a valuable role and are not a liability, but at the end of the day the 'disability' argument can be argued on both sides and they may well have prepared their case sufficiently well to counter any suggestion of discrimination.

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This is the problem. The disability argument seems to be being used by the employer to get me out of my role. Its well paid and they no longer employ on my band.

 

Im fine, but if the employer is saying 'you cannot do that role due to your knee' isn't that disability discrimination in itself?

 

Also, an exit on disability grounds will impact my future employment prospects also, so Im trying to avoid that outcome at all costs.

 

As I've said, everyone qualified has given me the 'all clear', so how can my employer make that call? It seems like a great vehicle to get rid of employees with no recourse from the employee, ie. we've deemed you unfit, despite the tsunami of evidence to the contrary, goodbye!'

 

Like I said, I thought getting better would lead me back to my old role. Im now looking at the prospect of no job, a disability discharge hanging over my CV and more financial hardship.

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take a witness or union rep with you.

Request notes are taken (if they are not being already done)

READ THE NOTES CAREFULLY at the end.

Make sure all important points on the notes reflect what was said AND make sure additions or edits are actioned and signed to make them reflect the meeting.

 

ALSO

 

Make sure in the notes you request a coipy along with any other meeting notes relating to this issue.

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The SabreSheep, All information is offered on good faith and based on mine and others experiences. I am not a qualified legal professional and you should always seek legal advice if you are unsure of your position.

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take a witness or union rep with you.

Request notes are taken (if they are not being already done)

READ THE NOTES CAREFULLY at the end.

Make sure all important points on the notes reflect what was said AND make sure additions or edits are actioned and signed to make them reflect the meeting.

 

ALSO

 

Make sure in the notes you request a copy along with any other meeting notes relating to this issue.

 

I didn't know you could request that. Im still waiting for my union rep to get back in touch.

I don't wish cancer or major surgery on anyone, but I'd like to see how this would pan out with a member of management...

 

 

Thanks for the reply, it is appreciated

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Yup, even better for £10 you can do a full subject access request and ask for everything the company holds on you :) But that could take 42 days

 

 

Getting the notes and then a full Sublect Access Request will help you should you need to prepare an appeal/tribunal claim

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The SabreSheep, All information is offered on good faith and based on mine and others experiences. I am not a qualified legal professional and you should always seek legal advice if you are unsure of your position.

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Hi All,

Well, it ended up in a 'Compromise agreement' Not a great one ,as they were just going to pay my notice and get a cast iron guarantee that I'd not make any claim against the group. I considered this to be a bit of a pee take as I feel as though I've been treated awfully.

So I said Im going for medical discharge with a view to appealing immediately and stating my case.

I pointed out that you cannot apply the restrictions they've suggested to any job role, therefore making my position impossible.Its all gone quiet from their end.... Will see what happens

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Had medical termination letter through today. Nice present for Xmas. Great how they only gave me 24 hours to prepare for 'final meeting' ie. had not time to arrange representation . The union rep was off shift and the guy who worked for the union 'doesn't get involved till the appeal stage'

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Should have adjourned until the rep was available it was your right.

 

Bill

All information given above is purely my own opinion. Some based on personal experience. Where backed up by case files I will make that known. However, until then please take all of what I say with a pinch of salt and accept it only as a reference. :madgrin::madgrin::madgrin:

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Thats fine, do the notes anywhere make mention that you were asked if you wanted representation? :)

 

If you said yes or they did not mention it then use that as added grounds for appeal

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Thats fine, do the notes anywhere make mention that you were asked if you wanted representation? :)

 

If you said yes or they did not mention it then use that as added grounds for appeal

 

Yes they asked and I said 'no' due to the fact I thought proceedings were still informal. I didn't know we could adjourn till after the meeting

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So, can an employer dismiss you on medical grounds on 'perceived disability' one which doesnt exit outside of the Occupational Health nurses mind? Theres wear and tear in my knee, but nothing more than age and the deterioration has ceased between two MRI scans 18 months apart.

 

Can I argue that if that is the case, it leads my ex-employer to require vetting of all new employees ,which in its self is illegal on disability grounds?

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  • 2 weeks later...
Anyone? :violin:

 

You could appeal the termination in writing on grounds that at the very least there should have been and ergonomic work place assessment carried out by an external assessor (usually provided by access to work via DWP) this would have been conducted by a qualified occupational therapist/assessor who should assess your role, it's demands, it's mechanics, stresses on your system etc and then reviewed that against your medical diagnosis, prognosis and also a full functionality assessment which may include the assessor monitoring your condition and its effects upon you throughout a usual working day.

 

Depending on what that report said then if in your favour the company could and should then conduct an individualised risk assessment of the role, your conditions, the medical reports, the access to work report and the companies off health report.

 

I do not know of time limits to appeal terminations based on capability but there should be capability procedures in your staff handbook etc.

 

Sounds like a typical public sector Occ Health management fudge up of these things. Do you work for public sector or a very large organisation?

 

I would appeal straight away, learn the employee relations act, the employment act and the health and safety act, sounds like your Union guy was useless too.

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I am fighting it all the way :-x

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You could appeal the termination in writing on grounds that at the very least there should have been and ergonomic work place assessment carried out by an external assessor (usually provided by access to work via DWP) this would have been conducted by a qualified occupational therapist/assessor who should assess your role, it's demands, it's mechanics, stresses on your system etc and then reviewed that against your medical diagnosis, prognosis and also a full functionality assessment which may include the assessor monitoring your condition and its effects upon you throughout a usual working day.

 

Depending on what that report said then if in your favour the company could and should then conduct an individualised risk assessment of the role, your conditions, the medical reports, the access to work report and the companies off health report.

 

I do not know of time limits to appeal terminations based on capability but there should be capability procedures in your staff handbook etc.

 

Sounds like a typical public sector Occ Health management fudge up of these things. Do you work for public sector or a very large organisation?

 

I would appeal straight away, learn the employee relations act, the employment act and the health and safety act, sounds like your Union guy was useless too.

 

Have you been pensioned or dismissed on grounds of capability.

Also if you have funds or union insurance that will pay for it lodge a claim at the ET for unfair dismissal and disability discrimination.

 

What matters with your disabities is the effect on you doing the job not what they perceive is the effect.

 

If it's a health and safety reason then this should have been properly assessed as outlined in my comment above.

I am fighting it all the way :-x

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You could appeal the termination in writing on grounds that at the very least there should have been and ergonomic work place assessment carried out by an external assessor (usually provided by access to work via DWP) this would have been conducted by a qualified occupational therapist/assessor who should assess your role, it's demands, it's mechanics, stresses on your system etc and then reviewed that against your medical diagnosis, prognosis and also a full functionality assessment which may include the assessor monitoring your condition and its effects upon you throughout a usual working day.

 

Depending on what that report said then if in your favour the company could and should then conduct an individualised risk assessment of the role, your conditions, the medical reports, the access to work report and the companies off health report.

 

I do not know of time limits to appeal terminations based on capability but there should be capability procedures in your staff handbook etc.

 

Sounds like a typical public sector Occ Health management fudge up of these things. Do you work for public sector or a very large organisation?

 

I would appeal straight away, learn the employee relations act, the employment act and the health and safety act, sounds like your Union guy was useless too.

 

Have you been pensioned or dismissed on grounds of capability.

Also if you have funds or union insurance that will pay for it lodge a claim at the ET for unfair dismissal and disability discrimination.

Ppp

 

What matters with your disabities is the effect on you doing the job not what they perceive is the effect.

 

If it's a health and safety reason then this should have been properly assessed as outlined in my comment above.

 

Loads of stated cases at the employment appeal tribunal and court of appeal etc where someone who didn't want to and they should have found another role for you even if it meant moving someone or giving you a job higher than your grade as long as you could do it.

 

A

I am fighting it all the way :-x

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