SICKNESS

This post has been removed because it contravened our guidelines.

This post has been removed because it contravened our guidelines.

Occ health gives expert advice on matters specific to work so yes, with regard to fitness for job/necessary adaptions/etc, will be given more weight than advice from someone who is a medical specialist in that particular condition but who lacks a work-place focus. In other words, employer likely to go with occ health rather than consultant specialist if advice differs.

Hi

Thanks for the comments and advice. No malign intended.

I have been informed an AXA occupational health appointment has been made at an Different GP surgery to the employees own next week..

I'm not sure how an occ healyh GP will know what to advise for a workplace they have never visited before or are just as unsure as her own GP.

Consultant advice and reports already with AXA will occ health over rul e a consultant specialist?

To little to late?

C

I see not all posters to discussions are equal!
Pregnancy involves H&S, HR, Fire Safety. Interesting that choosing the words 'maternity leave' can change all that. Opinions and word smithery differ greatly from one personality to another.

Clare,
I do have a concern with this G.P./Patient confidentiality being a reason to have held back information from the employer for so long. It isn't helpful and probably helped form opinions in HR/management that influenced some terrible 'company' decisions. I'm in favour of the employee winning constructive dismissal via ACAS.

Albeit, this is in no way a win. when both parties have lost. Lost job, lost time, money and health...

Not an HR expert, however, being a chartered H&S practioner for the last 10 years or so, i would agree with Alan that this is not a health and safety matter. The dispute is over employement law issues , not on health and safety matters.

Alan,

My intention was to answer Clare's question re: potential negligence of employee and whether this would affect the employee winning a constructive dismissal case. My point was that as long as the employee is able to answer questions such as these and justify her claim, then surely constructive dismissal could/should be pursued, especially if there is a complete papertrail of evidence and additional mitigating circumstances. I thought that was explained fully and if it has been misinterpreted, then I apologise.

Clare's original question was 'Constructive dismissal on employee part or keep on trying without HR Occupation Health no support?' In the absence of what was - in my opinion - some important information, I had hoped to provide Clare with the assistance to advise her colleague to move forward with constructive dismissal (finances permitting) if there were no gaps in her defence. I was in no way 'accusing' anyone and certainly not 'battering' them. I do not give up my working time generating reasonable and relevant questions that may be asked by a defence in order to publicly slaughter anyone - I was trying to assist in the same way that Mark Spencer was earlier, Alan.

It had also been mentioned by a few individuls that it was difficult to assist further without knowing more details so thank you, Clare, for your equally lengthy response to my many questions (sorry again). I reiterate, its point was only to show that if her colleague has no gaps in her defence, then it may be worth the financial burden of going ahead with the claim. Ultimately, only she can make that decision.

A great deal of people have provided valuable advice on this post, including you Alan, so I hope that all of this will assist Clare's colleague in her decision.

Kind regards,

Amanda

This post has been removed because it contravened our guidelines.

The employee is depressed so the issue is clearly causing more stress.

I have information as manager and am the employee's representative. So not one side of the coin.


The employee is also aware that lawyers are expensive and a constructive dismissal case woud add to more stress.

1 & 2 ) The employee had issues with the role, hours and collegues.

Occupational health had been made aware of this problem since 2004 although this was with another occupational health GP not an AXA GP.

3) Before being made permanent a hearing test was performed 1999 and failed, this was investigated at hospital and reported to the company occupational health.

In 2007 hearing was decreasing so line manager informed of need for hearing aids in both ears and need for support.

Occupational health re - tested to help patient take loss to GP.

AXA took over occupational health 2009 but no files discarded so yes the company had been made aware by employee od deafness and depression.

4) Reports not given post May 2010 as employee wanted to maintain right to keep medical records between patient and GP.

Consent was given from July 2010 for medical note.

Employee depressed November 2009 until May 2010 and in no state to know what was being agreed .

Plus maintaining personal notes between GP and Patient.

All reports and notes given from July 2010 to date and yes a report was seen before being given to employer, employee aware of this right to view reports.

Although at the time employee did not ammend report as Mother died so it was sent as AXA had written it.

5) Part of the grievance was that the phased plan was not followed by line manager. This grievance was denied.

6) The employee questioned refusal of fit note in grievance and requested an occupational health assesment. Line manager did not make as on vacation.

Line manager refused reduced hours but said the no heavy lifting would be possible, manager maintained full time work possible by employee.

7) Fit note after phased returm stated cardilogy investigation as well as depression,.

The employer was aware of heart condition prior to phased return in May 2010 and allowed employee back to work without medical notes being given to occupational health.

8) If SSP has been used regardless of health reasons no sickness benefits are available from the company, different companies have different rules.

9) Waited until July 2010 as employee went back to work thinking sickness over May 2010 to give notes.

Medical information given by employee and fit notes prior to May 2010 verbally only as well as fit note evidence.

Employee wanted to maintain patient GP confidentiality.

10) Only 1 grievance, no extension offered to employee suspect employee not aware of extension availability.

Company and HR aware of dying then death of Mother.

I suspect grief was a main priority at this time and not grievance or constructive dismissal or telephoning ACAS.

11) Employer received letter from employee asking for medical to return to work.

Heart condition is a permanent one and consultant recommended reduced hours and no heavy lifting.

Depression covered equality act and ongoing since 2004.

Employer aware of condition through old occupational GP reports from 2004 and 2007. Although this was not AXA.

Adjustments can only be given via AXA. Not suggested by employee.

ACAS did suggest constructive dismissal case.

Im not sure I replied to all your questions Amanda as it was lengthly, if I have missed something let me know.



Many thanks.

c

This is not the palce to accuse people or batter folk either, the lady has been advised and is following that advice. Your friendly lawyer.

Good morning, Clare

Ernie is right. It is difficult to provide definitive advice when only one side of the story has been portrayed, second hand. Unless you are the employee, Clare, you have to trust that she is not misinforming or indeed failing to inform you of the full events over the last 14 months. You have already stated that you were not directly involved in this case, so that is a possibility. Additionally, bearing in mind her length of service and the potential disability discrimination that may be applicable, I find it odd that the employee has waited this long before deciding whether to pursue constructive dismissal.

If she did now decide to go ahead, there are some obvious questions that the employee would be asked - and would need to clarify/justify - based on the information that you provided on 25 January 2011 and additional details since. There are failings on both sides (and I am not defending the actions of the employer) but I am just trying to answer your question 'What is the employee negligent on and would this stop a constructive dismissal case?'

1) What is her job role/hours? This has never been clarified, although you mention work related stress/depression as her condition...
2) What reason was given for the work related stress? Was it the role itself? Issues with collagues? Hours? Please clarify....
3) Why did the employee herself fail to inform occupational health that she had terminal hearing loss and/or request a face-to-face meeting in Nov 2009? She has a responsibility to fully inform them of the full facts in the same way as the company. If not, how can she expect to receive the correct support?
4) If the employee was looking for support from the employer and wanted to return to work, why did she refuse access to a GP Report in Nov 2009 & pre-May 2010? The questions asked by an employer within a request for a GP Report are generally specific to the current medical condition. Therefore, privacy in relation to additional or past conditions would not necessarily be discussed unless the GP felt that it affected the current condition. Furthermore, the employee can request to see the report before it is disclosed to the employer and can also request for information to be removed if it is considered private and/or not relevant to the current condition. I can understand HR being frustrated if they received limited information to make a fully informed decision with regards to capability to return to work on part/full-time hours. The company can only make a decision based on the information that is made available to them and, to be honest, could/should have initiated the capability procedure long before this. If a GP is suggesting a return to work on phased hours and the employee is stating that she is fit to work, then the company can only refuse this after questioning/investigating capability or providing viable business reasons for not allowing it (e.g. on the grounds of H & S or role impact, although alternative roles could then be explored). Therefore, she was allowed to return to work and was being monitored by HR and her manager.
5) Did the employee appeal the first grievance decision re: failure of line manager to implement support plan during the 8 weeks phased return? If not, why? Did the employee continually request support throughout that 8 week period and did she formalise it?
6) The transfer from sick-notes to fit-notes do now provide the employer with the option of questioning the advice of the GP, an/or not to accept it, but the employer must still follow the correct procedure and initiate consultation with the employee before that decision is made. As already stated they must also provide viable reasons for non-acceptance of the GP advice. Their personal opinion is not enough. Did this happen? Did the employee question their non-acceptance and request OH involvement or agree to stay off sick? What reason did HR provide if it was their opinion that the employee could work full-time instead of the suggested reduced hours?
7) What medical condition was specified on the fit-note after the 8 weeks phased return had been completed. You state that adjustments were suggested in the form of reduced hours, monitored workload and no heavy lifting. All of these adjustments do not appear necessary if the employee's condition was still deemed as work related stress/depression, so was the cardiology condition stated also (you had stated that the employer only raised concerns of the latter on receipt of the medical notes/GP report later in the year). Again, I am surprised that the capability procedure was not pursued by the company again at this point, as continued refusal to provide consent for a GP report and, therefore, limited information at that time would have allowed the company to make a decision to potentially dismiss if no alternative role was available (and if that was indeed what they were hoping for as you suggest).
8) If the employee returned to work in May 2010 until July 2010, why was it necessary to claim disability insurance/ESA after May 2010 unless the claim was continued in order to subsidise the part-time hours? Additionally, if the fitnotes after May 2010 stated a different condition, wouldn't a new period of SSP commence? (My apologies if this has a straightforward answer. I am not skilled in the financial side of sickness absence! :o)
9) When & why did the employee finally allow consent for a GP & specialist report to be released? Why did she wait so long? What was the result?
10) What was the reason for the second grievance and was additional time to appeal requested by the employee due to the death of her mother? Additionally, if the employee was off sick at the time as stated, was the employer even aware that the employee's mother had passed away and/or its subsequent effect on the submission of a grievance appeal?
11) In what capacity did the employee request a return to work in November 2010 and had she fully recovered? If not, what was the medical condition at that time? Did her GP/specialist advise a return to work? If so, was any adjustments suggested?
12) Is there a papertrail from the company re: consultations, grievances, appeals, OH/GP involvement etc. The company would need to provide viable reasons for the decisions that they have made and the employee would be entitled to a copy. Have you seen this information?
13) If ACAS was involved at the grievance stage and the employee could not lodge an appeal due to the death of her mother, I am surprised that ACAS did not suggest that she request additional time or for the employer to act reasonably, especially in light of the circumstances. If the employee had fully informed ACAS of the events since November 2009, I am also surprised that they did not inform the employee that she had a case for constructive dismissal themselves.

My apologies for the EXTREMELY lengthy response - and I am in no way trying to defend the failings of either party - but you wanted to know, Clare, where the employee may have been negligent in her actions. I am no defence lawyer but I have already been able to raise a whole host of questions that your colleague would need to be able to answer. Martin rightly pointed out that both parties need to be reasonable if the correct advice, support and action is to follow. There is no doubt that the company management has been negligent in its responsibilities towards this employee, if the situation is as clear cut as you state. Invariably, however, this is never usually the case and we are often unaware of the full details.

I hope that this is sorted soon.

Kind regards,

Amanda

There's some pretty difinitive advice being given here on the basis of only one side of the story. Good advice I might add but relevant only if the conclusions people are reaching are correct based on Clare's version of events only.

As ability to carry out manual handling safely has been brought into question and the lack of risk assessments has been highlighted by Clare I respectfully suggest that health and safety is a relevant factor in resolving the issues here.

I've just read this today and must admit that by half way I'd started to suspect the same thing as Carol so please Clare can you answer the question. Are you the employee whose situation you are enquiring about?

I'm sorry John.

Why is the truth slander or or evil.

If you look at the facts ACAS had been called.

C

Thanks for the put down Alan ... I shall just read in future!

I am sorry Clair but I believe that you are getting too involved with this issue and turning it into your own personal crusade to malign your company, The real person who needs the help is being abandoned. If you want to help her get her to make that first phone call then stand back slightly and support and encourage as necessary however, she is the one that must get the ball rolling.

I think Clare is struggling with very emotive issues and she should be given some slack here guys. Your friendly lawyer.

Not a very constructive response to one who is trying to assist you Clare...

The winning side of course.

I don't wish to appear obtuse but it is essential that you decide where your duty lies and you may need to take advice on this, either you are a company representative or a staff representative and your duties are applicable to either. Once you have ascertained where your duty lies the position will become a lot clearer and your life will be a lot easier. Your friendly lawyer.

John I am involved because it is being discussed at meetings, don't you care about your staff?

I have also seen this employee at work I did work in the department but switched to QC.

ACAS have advised the and a grievance carried out which was of useless conclusion.
How so to suppose a person earning no money or receiving no SSP will pay an expensive solicitor.

I am also a representative on site as the company has no Union.

Thanks again Alan I see the disaster coming bit am stuck for help. I know I am supposed to tow company line but have a voice and agree all employees receive a duty of care even if they are sick.

C

Quite so John, I am afraid i got a little lost in all of the details of who was who but the facts are as you say leaning towards a disaster if nothing gets done quite soon. Your friendly lawyer.

Sorry folks but I am going to play devils advicate on this, Clare has said this matter refers to another employee, she is not thier manager so why is she getting so involved? how is she able to state who said what and how does she come into possession of all the personal, medical, specialist and employer information???.

If she really wants to help she should take note of Alans latest response and advise her collegue of this and to tell her to get in touch with a suitable adviser AS SOON AS POSSIBLE

Health and Safety Revolces around systems, people and processes to factually correct.

But point taken.

Health and Safety revolves around premises and systems and has nothing to do with employment relations law, it is like saying fire safety has somehting to do with maternity leave. I dont want to annoy people but please keep to the subject, these forums are for advice, not opinion. People are relying on these pages for distinct advice to solve problems, the forums are the place for opinion. I dont want to crush Martins views but o this occasion it is completely off square. I hope this helps. Your friendly lawyer.

Your final paragraph provides logical advice Alan ... but to say it has nothing to do with Health and Safety is somewhat of a rather ambiguous claim
As Martin says there is an elimentary principle of Health and Safety here whereby both the employer and employee have legal responsibilities.