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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I was suspended on full pay on October 4th 2013 pending investigation

Resolved Question:

I was suspended on full pay on October 4th 2013 pending investigation into allegations made against me by colleagues. I have been severely depressed both before and since the suspension. I booked a trip which is supported by my GP as a positive thing but my employer has declined to authorise this on the grounds that other staff members have requested annual leave at the same time. How can they do this when I am not at work anyway and they have an extra person standing in for me?
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. Do you know if there are others who have actually requested leave for this particular period? Also when is the trip planned for?

Please note I am travelling at the moment so may not be able to respond immediately but I am going to have a permanent connection later this evening, thanks

Customer: Hi Ben, I am not sure if there is anyone else who has requested leave at the same time and as I am not allowed to contact the hospital I can't really find out. The trip is planned for 29/4/14 to 24/5/14. I went to a first disciplinary meeting on 4th April when I think they were hoping to dismiss me but my Royal College of Nursing Rep was not satisfied about the allegations made and felt that scapegoating was going on (which I believe to be true) so at that meeting they could not make a decision because further information is now required. However at the meeting we were trying to find a date that was acceptable to us all as my rep is on holiday from 21/4 to 27/4 I told them I was going away on 29th so we agreed to the meeting on 28th as I was not returning until 24/5 and they did not want to wait that long. Because I was suspended, I was unsure how to book annual leave and also when I booked my trip, I assumed that this would all be over. They know I had booked the flights etc before I put the request in and I believe it is just another ploy to be able to discipline me and dismiss me. They have my role covered and so legally how can they use this excuse. It would not make too much of a difference if two people were off at the same time as we have sessional counsellors who could be called in anyway. They owe me at least 5 days from last year.
Customer: I saw my GP yesterday and she wrote them a letter saying that to refuse the leave is detrimental to my psychological well being and she supports my need to get away and gain some perspective on life as all of this has had a very negative effect on me. I have also taken a case with the employment tribunal for disability discrimination as I had cancer in 2012 and they did not support me, I have a hearing impairment (moderate to severe) and wear two hearing aids and they have not made allowances for this. I also was diagnosed with depression in April 2013 when I was undergoing radiotherapy and they made no allowances for this when my work suffered. This was when my team made allegations against me.
Ben Jones :

Good evening. There is no legal right to take annual leave during a period of suspension. Whilst you may be kept off work during that period, you are still expected to be available to attend work if necessary, for example for investigatory meetings, to discuss the suspension, and so on.


 


In fact, under the Working Time Regulations the employer has the legal right to reject an employee’s request for annual leave if necessary so the fact a request for holidays has been made, does not mean it must be grated and the employer does not have to provide a reason for their rejection.


 


However, it is not all bad news and you could try and argue this under disability regulations. In the legal sense of the word, disability can have a broad meaning and there is no single list of medical conditions that qualify. Instead, to establish whether a person is disabled, they need to show that they meet the legal definition of a ‘disability’.


 


The Equality Act 2010 defines a disability as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.


 


I will break this definition down:



  • Physical or mental impairment – this can include nearly any medical condition;

  • Substantial effect – the effect must be more than minor or trivial;

  • Long-term - the effect of the impairment must either have lasted or be likely to last for at least 12 months;

  • Normal day-to-day activities – these could include anything considered ‘normal’ in a person's normal daily routine (e.g. walking, driving, speaking, eating, washing, etc.)


 


If a person satisfies the above criteria, they will be classified as being disabled and will have automatic protection against discrimination, which means that they must not be treated unfavourably because of their disability. In addition, their employer would have a duty to make reasonable adjustments if they are likely to be placed at a substantial disadvantage when compared to non-disabled employees.


 


So assuming that you meet the criteria for disability, you can argue that it would be a reasonable adjustment to allow you to go on holiday to assist you with your recovery. Their refusal to allow you to do so, assuming that the business will not be impacted, could result in discrimination and you could raise this with them.


 

Customer: Thank you Ben, I have had the preliminary ET hearing and priory's solicitors can't dispute the cancer but are disputing my hearing impairment and depression. I've worn hearing aids for 10-15 years and without them can't hear normal speech. I got another letter today from the audiologist supporting this. I have been treated for depression since April last year and the anti-depressants have been increased on two occasions as my depression has worsened. I know they are in their rights to decline the annual leave but it is the reason they are doing it that is so horrible and I think they realise I have a good case as they neither supported me nor made any reasonable adjustments and I think they are trying to force me to resign. What they have done is extremely unfair throughout my employment and the hospital director chose to ignore the times I asked for support and guidance as she doesn't deal with conflict well. There were occasions when she did not discourage my team from speaking directly to her rather than to me as their line manager but when I tried to discuss the situation with her she denied saying what the team told me she had said. All very difficult. I will write saying what you suggest that the holiday (voluntary nursing in the Peruvian Amazon which I have done 3 times before) will help with rehabilitation from depression and that declining the leave is discriminatory and see what happens. How do I deal with the fact that they changed the date of the second disciplinary meeting from 28th April to 29th at 11.00. They know my flight is as 09.45 on 29th. Can I insist they change it back to 28th as initially agreed with. My rep? Also could they go ahead with the disciplinary hearing without me if I go in leave. My GP wrote a strong letter in support of the leave saying if I was not allowed to go it would be detrimental to my psychological health.
Ben Jones :

the issue is that if you go on leave when you have not been authorised to do so, it could amount to unauthorised absence from work. It could allow the employer to hold the disciplinary in your absence. You may wish to consider being signed ff sick instead because if you are off sick and cannot attend due to that reason you have a better chance of postponing the hearing than if you just went on holiday when you were not allowed to do so

Ben Jones :

Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? Thanks

Customer: Hi Ben I think for now I have a better Idea of what I need to do. I know their intention is to want me gone. Personally I want to leave and have snothr
Ben Jones :

Hi, I don't think your full response came through last night?

Customer: Another job to go. I think I may write the letter you suggested saying that they are discriminating against me when I am trying to recover from depression by going away with my dr's backing. Thank you for your help. Lyn
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46792
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Expert:  Ben Jones replied 3 years ago.
You are most welcome, all the best with this

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