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taratill
taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6339
Experience:  15 years experience of advising on employment law matters
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I have been off work due to stress for approx 8 weeks ,and

Resolved Question:

I have been off work due to stress for approx 8 weeks ,and was deemed fit to return on 27 may. I was allowed to take my 2 weeks vacation and then asked by my registered manager to take 2 weeks sick as she was on holiday and needed to to be present for my return to work interview. On Friday 4 July at 5.00pm my interview ( to which I went am a senior manager of the company) went as thus - basically don't feel the pressure would be good for me, I asked if I could return to work on the floor to which they replied it could make things awkward and would I like to consider voluntary redundancy. I must emphasis the reason for the time off was all work related and the pressure that had been put upon myself and throughout the visits to the doctors the registered manager and the owner stated that I would be given full support and phased back into work.
Submitted: 3 years ago.
Category: Employment Law
Expert:  taratill replied 3 years ago.

taratill :

Hello my name is ***** ***** I am happy to help you today. How long have you worked there for?

Customer:

HelloTaratill

Customer:

I have worked for the company since november 2006.

Customer:

I was made manager of day services due to the owner (the husband ) passing away and I was already his assistant.,this was in may2013.

Customer:

I along side the registered manager played a major part to keep the company going working endless hours through choice.We are at the present time are ready to takeover another company to make us the largest in the county and due to my work have now have to find bigger premises as Day services is expanding all the time. to go back to a return to work interview and to be asked to think about voluntary redundancy is not what I expected and as the anxiety of my mental health was affected, it seems ironic that the company I work for support adults with learning disabilities and mental health issues.

taratill :

Have they said what will happen if you do not accept the Voluntary Redundancy?

Customer:

I did make an offer of returning to work on the shop floor as this would help to reduce my stress as they inform me they had found faults with my work while I was off, to which they replied do you not think it could be awkward for yourself and the staff, to which I replied I would not have suggested it as I will always be professional. Again they brought up the subject of voluntary leaving ,in fact if required they maybe overstaffed and therefore a formal interview for all day service staff would have to take place as they felt at least 1 person would have to leave. This of course would be carried out formal looking at individuals qualifications and experience and seen as I have the most still they thought it would be uncomfortable for me to work along side my peers. I must also inform you that if they thought I was not good enough.to carry out my position why was it on just 3 days notice I was the only person that could carry out a CQC inspection which means going through all relevant documentation within the company and I completed this successfully.

taratill :

Was your performance ever at issue before you went off sick and have you had previous episodes of depressive illness?

Customer:

No and I have a history of depression, but this was stated at the time of joining the company.Also this event was purely brought about with events that have happened at work and the amount of work that I had to carry out above and beyond the running of day services and with the support of my doctors and recieving therapy it was concluded that this was nothing to do with my normal depression.

taratill :

When you suffer from bouts of depression does this have an impact on your ability to carry out day to day activities?

Customer:

no

taratill :

Ok sorry to press the point but you can operate completely normally whilst depressed and it does not impact on your life? I am trying to assess whether you may be deemed to be disabled for employment law purposes and would gain protection from the Equality Acf.

Customer:

I can see where you are going with this and maybe and do need to look into the Mental capacity Act, I really feel that if they which me to leave that

taratill :

Hi the mental capacity act isn't really what I'm asking it is whether they have obligations under the Equality Act which is relevant to employment law. If your depression is long term (even if not constant but recurrent) and has an impact on your ability to carry on day to day activities which can include going out or preparing meals etc. then you may be afforded additional protection in employment law.

Customer:

1. they should give me formal notice as I would not be able to claim benefits if I take voluntary and I do feel that the reason they want me to go is being constructive

Customer:

and under the Mental Health Act not once has the company deemed me to be unfit to carry out my duties, no informal/formal meetings have ever taken place.

taratill :

Hi the mental capacity act does not impact on the employment situation it is the equality act that is relevant. If you have a mental impairment which is longterm and has a significant impact on your ability to carry out day to day activities then you may be disabled. There are instances where depression can amount to a disability. This could be due to a persons inability to go out or to prepare food whilst depresssed (for example!).

Customer:

sorry Taratil not following as my job is in promoting educational skills and social outings we employ carers to do the inhouse work do your feel I need to seek medical advice also as I certainly do not want to given up work as I am at present talking to local schools about teaching placements

taratill :

Hi I'm not suggesting you need to give up work just trying to see if you are deemed to have protection at work under the Equality Act. If you do not believe that your periods of depression impact on your life then it does not apply in any event.

taratill :

To go back to the issue at hand your employer cannot dismiss you if you fail to agree to voluntary redundancy as it does not have a fair reason to do so. Were you to be dismissed you would be able to claim unfair dismissal. Your employer should not erode your role either. You should be allowed to return to your original role. If they do seek to erode your role youshould raise a grievance and if matters do not improve you can consider resigning and claiming constructive dismissal.

Customer:

This is exactly what I thought and as they have made me feel quite a hostile return to the workplace I do not feel comfortable entering I have told them this and they have already given me the day off with pay (I am salaried) to think about the redundancy and to seek advice , I really feel this is not sufficient time to sort out professional advice, again they keep putting back to myself what do I feel and as I said I was happy to return to work ,they feel it could be awkward.

taratill :

You should raise a formal grievance about the way you have been treated.

Customer:

This would be with the the registered manager and how do I stand about not going back into work at present as I do not feel I should go of sick as they have already just asked me to do this for the past 2 weeks, and by the way I am salaried and while I was off changed me to normal ssp without any formal notice.

taratill :

Hi if you are fit to work you should say you are going back. Regarding sick pay there is nothing wrong with paying SSP to salaried people provided your contract does not specifically entitle you to full sick pay. Most companies do revert to SSP for salaried employees after a period of time.

Customer:

unfortunately for the company it was always agreed for 6 months and this was carried out earlier this year with another employee and according to my contract I should be informed of any changes within 1 month. I went of sick mid april and recieved full pay then in may recieved ssp with notification that this was happening.

taratill :

Hi that amounts to an unlawful deduction from wages then and they are obliged to pay. You should give them 7 days to pay and if they do not you can claim at www.employmenttribunals.gov.uk . You can do this whilst still employed.

Customer:

thanks for that . The other thing that was said that this that due to company restructure with going into theother company this is why ssp and other thingd were happening BUT the consoldition had not proceed whilst I was sick in fact they are still at legal stage.

taratill :

the fact that there is a restructure does not affect your position at all. In the future they may say that they do not need someone to do your role but this should be after a reasonable period of consultation which has not taken place here.

taratill :

if you have any further questions please do ask. Please remember to rate my answer as I am not otherwise credited for my time.

Customer:

Do you feel that have the the right to ask to be given paid time off whilst i seek more guidance .

taratill :

You can ask but they are not legally obliged to give it.

Customer:

thanks for all your advice today Taratil you have made me feel that what they are doing to me is so wrong on many levels.

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