Employer wants to meet to discuss absence regarding depression they caused.

[sangie5952]

There is already far too much information on this post that identifies the employer and individuals- if the employers get hold of it then they can use it to dismiss on the grounds of bringing the employer into disrepute. One of the moderators needs to anonymise it, please; and no you absolutely do not show the employer the thread!

 

They can dismiss for sickness absence, regardless of the reason for the sickness. Not immediately, no, but if they follow a legally correct prices and she does not return to work, then yes, she can be issued.

 

She has no right to be moved. She can ask, but they are not obliged to agree, and they do not have to protect her hours or the amount she works. She asks for another role, and she had to take what is offered, or not move.

 

I can't comment on cases I know nothing about.

 

No you have no right to be there. Yes, you can insist since it is your home - and they can insist that she attend a meeting at their offices instead. You may ask to be there as a reasonable adjustment because of her mental health problems.

 

You have no right to covertly record something just because it is your home. You may record something provided you do not share it with anyone else, and only for your own use. If you do otherwise, she faces dismissal for making a covert recording - loss of trust and confidence would probably be the grounds.

 

It must be the week for it because this is about the sixth time I've said it this week.

Proving that an employer is responsible for work related mental injury is exceptionally difficult.

They don't seem to be a particularly nice bunch of people to work for, but that doesn't mean that they have done much that is legally wrong here.

 

It is an employees responsibility to attend work at the right time

- there is no reason why an employer must accept any excuse, good or not, for lateness.

However they did take the warning back - they didn't need to.

 

It is equally difficult to dispute an employers judgement on performance

- in law the employer is permitted to run their business as they wish and to set whatever standards they desire.

 

There is a presumption that employers do not unreasonably set those standards, and it is almost impossible to overturn any dismissal based on performance.

An employment tribunal will not replace the employers judgement on performance with their own.

And I am afraid that there is no right to either paid or unpaid time off work.

 

That only leaves swearing at her.

It shouldn't have happened, no. But it isn't enough to construct a case of bullying.

 

As I said, they sound an unpleasant bunch, but honestly, there isn't a lot to base any legal care on.

They appear to be able to stay inside the the law - unfortunately it isn't that hard.

 

What do you think being moved to another position will achieve for her?

And if they refused such a request, what is your position - what do you want to happen?

And if they refuse anything, what is your next step, do you think?

 

Ps I have messaged the site to ask that they edit your post to take out details.

[sangie5952]

Thanks Honeybee. I suggest that you take out the word at the end of the sentence "Mt partner is a Cleaner working in the ...." There aren't a lot of those sorts of places!

[sangie5952]

Unfortunately, you are not wrong. Although, beginning utterly objective about it, if she wasn't able to do the hours required in the previous role, that is reasonable grounds for moving her to one where the hours suit her better. I know you said the manager didn't like it because they had to do the other hour. But really, that isn't unreasonable. And that is the rational that the employer will use. Employers can often be reasonably unreasonable!. It's an art form!

 

Let's see what they say. If they agree then you have a solution. If they don't, let's see if we can examine options. I wouldn't want to see her being sicker over this, and I'm sure you don't either. And that means something had to happen, and the options at least gives you a playing field to explore.

[sangie5952]

I really wish that I could say that there is nothing to worry about.

But I'm not going to lie to you.

 

It doesn't matter who writes the report (and I'll come back to that)

- she has now been off sick for two months, and it is very likely that the employer, even if they are not yet there, will be starting to consider the long term prospects and whether they should dismiss or not.

 

Occupational health is often not a doctor, but a medical professional

- quite a few are specialists with qualifications in occupational health.

 

For good reason

- most ordinary medical professionals are lousy at employment!

 

They are trained in medicine, not employment.

Occupational health specialists are trained in both.

 

They give the employer an independent opinion as to the medical situation of someone, their prospects of returning to work, and whether any adjustments can be made to facilitate that return.

 

However, whatever they say is not binding on the employer.

They don't tell the employer what to do, and the employer can ignore the entire report if they wish to.

 

In mental health situations, a conversation may be enough for them to review the situation based on the doctors notes.

They obviously believe that is the case here, and I can see why.

It is relatively straightforward.

 

They are likely to ask whether she sees any prospect of returning to work, and if there is anything that will help her do so.

This is her chance to say what she would like - but remember that even if they recommend it, that doesn't mean anything.

 

I'm going to be very blunt here, so please forgive me. This is just the way it is. Sorry.

 

It is nobodies fault if you lose your house (which is also possibly not the case - payment holidays etc., may be possible).

They may not be the nicest employers in the world, but the law does not require them to be nice.

 

it does not require them to organise their business around what your partner wants.

you know the job situation around where you live - you have already indicated that there are no other jobs of 30 hours or more to be had.

 

one or both of you need to get your act together.

 

She needs to go back to work.

And / or you need to go to work. If you scrape through by the skin of your teeth this time, you won't next time.

 

The employer isn't going to wait forever for her return.

Perhaps they are overly zealous at applying the rules.

Perhaps your wife would be better in a place with more people sound or her old place.

But none of that matters.

 

They are legally not doing anything wrong.

And that is the only thing that matters.

 

I am afraid that both of you really need to get down to brass tacks- you are at, or near the end of this journey, and one way or another it is unlikely to end wellSo you need to make some hard decisions.

[sangie5952]

Well you actually made me laugh. Or at least your Mrs did. Get that right out of your head! She can certainly be dismissed whilst off sick. That, in itself, is not unfair dismissal. I have no idea where that notion keeps coming from. It is utterly and absolutely untrue. Employers do it all the time. And provided they follow a reasonable process, it's fair. And her employers appear to be following exactly that process.

 

PIP is not means tested- you can work and still get it. It is based on an assessment of your disability, not your financial status. And if you are renting, how would you lose your house - if she loses her job then housing benefit would cover the rent, wouldn't it? I assumed that you meant you wouldn't be able to pay the mortgage.

 

I think it is incredibly selfish of you to say that you'd split up. It may sound champion in your head, but if your relationship is worth so little to you, I doubt it will in hers! But I'm sure you don't mean it. However, this sort of thing isn't going to help her - you are sitting there saying that it's her responsibility to bring in the money to keep you together and with a roof over your head. So your entire future together depends upon her going back to work or getting another job, because if you tried to work you'd lose housing benefit. Does that sound quite as good now I've unpacked it???? No? Good.

 

Now you need to think this through together. You are not without options between you. Fewer than you'd like perhaps. But not without any. For example, I know her employers are not the nicest or most considerate she could have. But it is definitely easier to get a job when in one than when it of one. Can she cope with returning on the basis that it is about getting some space to find a new job? Are there things that you can do that would make returning easier? Is setting up her own cleaning business a possibility? Plenty of people pay for housework - I do! There must be options. Find them. Don't just give up.

[sangie5952]

Since employers are a business, I find it incredible that you think they are not.

If you believe ANY PART of what I have said is wrong or legally incorrect, please point out where and why.

 

Any employee off sick for a significant period of time can, provided a legally fair process is followed, be sacked.

Would you prefer that posters are lied to to make them feel better?

Having depression does not make someone immune from the realities of employment law.

 

But from what I can see, the only person who appears to be trolling here is you

- abusing other posters, calling them trolls, and saying that people have other options without saying what you think those are.

If you have something constructive to say, say it.

Don't dig up old threads just to berate the advice.

Especially when you don't know what you are talking about.

[sangie5952]

I knew you weren't leaving - you just needed to hear the other version of where your head was!

It's easy to get trapped in a thought and end up doing something entirely foolish.

 

Can you please explain what the end of the "first" bit of this process looks like?

They manager came, she spoke to OH and ... what?

What was the decision?

Or what was said?

Have OH made any recommendations?

[sangie5952]

Ok. So that was less dire than you expected.

Just be aware that this won't stay so laid back for ever, and the longer it goes on, the more likely they are to start capability processes.

 

So neither of you can afford to be complacent, although I'm sure that you won't be.

The problem she faces is being trapped in a cycle.

 

The longer she is off work, the harder it is to face returning; and her sickness record may get in the way of getting another job too.

She doesn't want what she is going through at the moment to become "who she is".

 

Do you have any thoughts on a way to break the deadlock, before the employer does?

[sangie5952]

Get your objective head on. Remember?

There is no requirement at all for an employer to be considerate.

And if she can't start when the work starts, that also isn't the employers problem.

 

If the start time can be varied, then that's all well and good, but if it can't then what she wants isn't going to happen.

So focus on asking for a move, but be as flexible as she can on where that is to.

 

The more she limits her options, the less likely they are to be able to support her move.

And if she wants to move, she's going to need to be able to tell them that she is coming back to work - if not immediately, certainly in the short term.

 

They aren't going to be up for arranging new work locations of it is not even certain she's coming back.

[sangie5952]

Excellent.

You see how much easier it is if you can provide solutions and not problems?

 

Hopefully this will also help her to overcome the worries she has too, or at least allay her fears.

Because she still does need to focus on getting back in a timely manner.

 

They are not likely to wait for ever.

So that needs to be your next thought - how does she get back?

[sangie5952]

That's great news. Tell her not to look for trouble where there isn't any though. She'll not help her state of mind if she's looking over her shoulder all the time. If the manager has a problem, then it'll happen without her worrying about it. But equally, they may not. You don't know what else may have been said to the manager. Just stick her head down, do her job, and leave it at that. Might be time to think about a union though!

 

Good thing you didn't move out - just think of all the hassle you have avoided with the boxes It all seems pretty silly now, doesn't it?

 

Good luck and I hope things work out better in the future.

[sangie5952]

Hi. I recall your previous thread vividly, and I'm afraid it isn't the union that is no good - it's the legal position that is no good.

They are correct - there is nothing obviously untoward here, legally speaking.

 

An employer is permitted to have a sickness absences policy

- they have one and they are adhering to it, as they did last year.

 

Having a disability does not prevent them from doing that, nor from dismissing people on either capacity or performance grounds.

Performance standards are not really a concern of employment tribunals.

They would not easily come to a position of imposing their own views where hadan employer said that performance is not satisfactory.

 

Broadly speaking, it is assumed that employers do not dispense with good employees who are performing well, so there would be a high bar to reach to prove that the reason for a performance plan/ dismissal was based on any other grounds

- you'd need some very solid evidence, and it doesn't seem that you have that.

 

Equally, provided there is a clear policy, dismissal on the grounds of sickness record is not unlawful, and provided they act reasonably IN THE EYES OF THE LAW then they can do that too.

 

So they must have a clear policy, they must follow that policy, and where appropriate they may have to make some reasonable adjustments.

But that's it - and I recall telling you how weak the "protections" really are last year.

 

So I'm afraid that there isn't a lot to advise you on, because you obviously want an answer that says they can't dismiss her.

And I'm afraid that they can.

 

If they go down a performance route, no matter how "convenient" that may appear in your eyes, that isn't proof of anything except her performance not reaching the employers standards.

 

From the employers point of view it's certainly a safer route than health related dismissals

- but even that isn't a necessary protection because the law permits an employer to dismiss for absences.

 

Even where a disability is the cause of some or all of the absence.

 

I think we advised that she consider looking for other employment last year - had she done so. If not, in all honesty, she needs to look right now.

[sangie5952]

ha ha ha, sorry but what you read in the papers and what happens in real life are two separate things. Her Union said there's nothing they can do so obviously there are no real "rights" in this situation. Best advice for future people: If you have mental health issues keep your mouth shut and try to blag it through.

 

I would strongly advise that you do not listen to the advice from dondada. They are wildly keen to quote laws that do not do what they claim they do, and case law that doesn't apply. There is a vast differences between a duty to CONSIDER reasonable adjustments and an obligation to provide them. A difference which the poster appears to not understand. And since this is not about reasonable adjustments but performance, a somewhat irrelevant comment. It's easy to claim to be some sort of expert on a subject you know little about, because you don't have to live with the consequences of other people following your advice. You are right to be cautious and to recognise that the real world doesn't operate like a Google law search! The only reason I'm posting a response is because I've seen too many people here being drawn into unrealistic expectations by this poster, and you have had enough problems over the past year without falling for amateur lawyer hour here.

[sangie5952]

Dondana

Define reasonable

 

You are wasting your breath. That's why I am refraining from posting here now. The poster is adept at telling people what they want to hear, as opposed to what they need to hear, and posting random and broadly irrelevant cases to support the contention that they know what they are talking about. This is going to end horribly for someone, and it won't be dondada, who cares nothing about the consequences that other people will reap from following their advice. There is a difference between disagreement and complete denial - dondada clearly, unlike someone like Emmzzi or others here, has no experience of employment law or tribunals but is setting themselves up as some sort of authority on a subject they know nothing about. Unfortunately that happens on sites, and then things can go horribly wrong for people. I am more than capable of googling the theory of nuclear physics, but you'd be an idiot employing me to manage your reactor!

 

And apparently, now, you must say "please" to them when toy speak. Getting above ourselves or what? He or she is an anonymous poster of dubious provenance on a random internet site. Not a High Court judge!

[sangie5952]

Absolutely wrong.

 

Most people do not have the experience you describe. Most employers now have very good policies around mental health. One of the biggest barriers to seeking help is stigma - telling people to keep quiet about it is the kind of thing that perpetuates stigma, prevents people asking for help, and is utterly irresponsible.

 

I'm sorry but I disagree. Most employers now have policies. SOME employers have been known to actually follow the spirit of them. Whilst I agree that keeping quiet can have adverse impacts, collectively and individually, there are still many employers who certainly will discriminate against people for both physical and mental disabilities. Having policies doesn't mean that you act well. It means your have a documents to produce at a tribunal to back up your assertion that you are being reasonable! We have had laws on gender and equality for 40+ years and employers have had policies on it for just as long. And look how well that is going....!