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

[fwog]

Thanks for the info Becky!

Why is could it be 27 months?

Arguably this is limited to a carryover period of 15 months prior to the last leave year - so up to 27 months in total.

It gives me a little more lea way as things are not improving at all, but how would I argue this with the employer when I return, or would they just pay it without question (as in 'is it HR law?')

What would be the likelihood of it being paid whist Im on sick leave?

[becky2585]

There was a German case decided by the EU Courts which implied, although didn't require, a reasonable carryover period, which in that partial instance was 15 months.

 

They HAVE to allow you to take your accrued holiday though. That's settled law. Of course, if you then didn't take it and you were provided with reasonable opportunity to do so, you would lose the leave as you would be at fault!

[fwog]

They HAVE to allow you to take your accrued holiday though. That's settled law. Of course, if you then didn't take it and you were provided with reasonable opportunity to do so, you would lose the leave as you would be at fault!

 

Hi Becky,

 

This is the odd thing, no one has approached my regarding this from either my employer or from the Union. If I hadn't looked into it ,I'd have never known. What would happen if the sickness continued beyond 27 months? As in, if I didn't have the opportunity to claim it before the time limit.

 

thanks again for the info 8)

[becky2585]

At present, I would imagine they would be obliged to pay you for the full period, but it's a grey area and we don't yet have a definitive answer. Ultimately, if they refused to do so, you would have to challenge it in the courts.

 

There's an article on the Schulte case here - http://www.xperthr.co.uk/editors-choice/ecj-provides-guidance-on-carry-over-of-annual-leave-during-long-term-sick-leave/111293/ which briefly explains that the reason for the 15 month carryover period here was that this was what German domestic law required at the time. The UK has no current carryover provisions in the Working Time Regs, so it's still open to interpretation!

[obiter dictum]

Court of Appeal rules on sick workers and annual leave

 

25 July 2012

 

ISSUE :

The Court of Appeal has today handed down its decision in the case of NHS Leeds v Larner.

 

The issue for the Court of Appeal to decide was whether or not an employee, who is on sick leave, must make a request to carry forward an entitlement to accrued annual leave into a new leave year.

 

The Court of Appeal held that an employee who is prevented from taking paid annual leave because they were sick is entitled to carry over their untaken annual leave to the next leave year without making a prior request. Where employment is terminated before leave that was carried over could be taken, an employee is entitled to a payment on termination.

 

KEY DATES :

The judgement was handed down to the parties today, 25 July 2012.

 

IMPACT :

The Court of Appeal judgement follows conflicting EAT decisions in Larner and Fraser v Southwest London St George’s Mental Health Trust. It has clarified that the EAT position in Larner is correct: accrued leave carries over to a new leave year automatically.

 

It seems that employers will now be obliged to pay sick employees holiday that has accrued in previous leave years. Unfortunately, the Court of Appeal did not consider whether a time limit can be placed on this. In KHS AG v Winfried Schulte, the ECJ held that a 15 month time limit for using carried over leave is compatible with European law so it is still open for employers to argue that a time limit applies. However, the position on this remains unclear following the Court of Appeal’s decision.

 

A further question mark remains over the difference between the 4 weeks annual leave awarded by European law and the 5.6 weeks annual leave awarded by the Working Time Regulations 1998. The Court of Appeal refused to address this point. However, pending further guidance from the courts, it may be possible to argue that only 4 weeks per leave year carries over.

 

ACTION :

Employers will not welcome this decision and should consider undertaking a review of employees on long term sick as, while they remain on the books, they are continuing to accrue holiday.

[fwog]

There's an article on the Schulte case here - http://www.xperthr.co.uk/editors-choice/ecj-provides-guidance-on-carry-over-of-annual-leave-during-long-term-sick-leave/111293/ which briefly explains that the reason for the 15 month carryover period here was that this was what German domestic law required at the time.

 

Excellent link. Thank you very much!

[fwog]

A further question mark remains over the difference between the 4 weeks annual leave awarded by European law and the 5.6 weeks annual leave awarded by the Working Time Regulations 1998. The Court of Appeal refused to address this point. However, pending further guidance from the courts, it may be possible to argue that only 4 weeks per leave year carries over.

This will not make much of a difference to me. Even though I'm an analyst, I still have to work the same hours as the guys on the shop floor and enjoy the same holiday routine. Which is 22 days a year , it works out at 4 weeks with stats as we do 12 hour shifts nights and days, the bear minimum or 4 weeks if you worked a 'normal' 9-5 week.

[ericsbrother]

An employer can dismiss on the grounds aof capability but should look at offering alternative suitable employment or risk getting clobbered fo disability discrimination. You need to speak to someone in your organisation who is tasked with dealing with disability matters and see what they can do for you. It will normally be someone in HR but may be an Occ health person.

[fwog]

Have you calculated if being on benefits is better than being employed.

 

Never have claimed ,never will.

[fwog]

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.

[Old Cogger]

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!

[fwog]

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.

[fwog]

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?

[Old Cogger]

2012 no nothing about that as well before then in my case, but insurers must be informed no doubt ??

[SabreSheep]

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

[SabreSheep]

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

[Sidewinder]

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.

[fwog]

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.

[fwog]

Well ,just had a letter to attend a meeting with a view to termination of contract tomorrow.

[SabreSheep]

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.

[fwog]

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

[SabreSheep]

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

[IdaInFife]

How did the meeting go fwog?

[fwog]

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

[fwog]

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'