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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48195
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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, I'm currently off work with stress and stomach problems

Customer Question

Hi, I'm currently off work with stress and stomach problems which I'm seeing a specialist for. I've been of for 9 weeks 8 of which were paid in full as my per my contract, time exceeding this is at the company's discresion. My boss has decided they will only pay state pay from week 9 onwards whilst I remain off sick. He has also requested my permission to contact my GP & specialist regarding this illness, and then wants a meeting with HR to discuss my absence management, which is all normal proceedure. However, my boss was aware of my stress before I went off ill, and didn't help to resolve it, he's checked up on me when I've worked from home, and I now feel the trust has gone between us, and feel going back to work would cause more stress for me. I would like to resign, and understand if I do this whilst off stick I will only get paid state pay, so my question is, would it be worth me talking to HR to discuss a compromise / settlement agreement, as I feel my boss wants me out of the business and will look for ways to do this once I'm back at work. You advise would be appreciated.
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long have you worked there for and how much notice is your employer required to give you if they were to terminate your employment?

Customer : I've worked there for 7 years notice period is 3 months
Ben Jones :

Ok yes so due to the length of service and notice required by the employer you are not due full pay during the notice period and would only be entitled to whatever sick pay you are due under contract, which could also just be SSP if your entitlement has run out.

There is nothing stopping you from approaching the employer and asking them to discuss a settlement agreement – the worst is they say no and you get nowhere so you have nothing to lose. But to have a chance of being successful you should have something you can rely on that highlights breaches by the employer and give you an upper hand in negotiations.

For example the termination of your discretionary sick pay. In some circumstances employees can be entitled to full company sick pay for a set period, after which their entitlement will either reduce or expire altogether. Such reductions could either be clearly stated in a contract or workplace policy, or simply be left at the employer’s discretion.

In situations where an employee has been in receipt of discretionary sick pay and the employer wishes to terminate such payments, it may be advisable to give at least a month's notice to the employee. Alternatively, the employer should consider reducing their pay gradually so that the employee does not simply go from full pay to reduced pay or no pay in a short period of time.

Similarly, if medical evidence shows that the employee may be able to return to work in the near future and they have only just lost their sick pay entitlement, it may be appropriate to continue paying the employee for the remainder of their absence. If there is no definitive return date, the employee has already received sick pay for some time and their entitlement has expired, the employer may be justified in terminating discretionary sick pay, subject to giving the employee some notice.

Finally, employers rarely retain full discretion in relation to discretionary sick pay and it is governed by the implied contractual term of mutual trust and confidence. This term generally requires employers to act fairly and reasonably when dealing with their employees. If an employer does not act in an even handed manner, it could breach the implied trust and confidence and give the employee the opportunity to raise a grievance at first. If the matter remains unresolved, they could even consider resigning and claiming constructive dismissal, subject to having at least 2 years' continuous service with the company.

As an additional point, if the employee is considered disabled in law (they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities) the employer’s actions could amount to disability discrimination.

Similarly, with the stress - a good starting point is to look at The Health and Safety at Work Act 1974 and related statutory instruments, which impose a general duty on employers to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees. This includes a duty to undertake risk assessments and manage activities to reduce the incidence of stress at work. In addition, under common law an employer owes a duty of care towards its employees, the breach of which can amount to negligence.

So these are the points you could use to your advantage in negotiations and try to see if a settlement agreement can be negotiated.

Customer : Thank you, ***** ***** should I approach HR about a possible settlement, I don't have much proof of harassment
Ben Jones :

there is no right or wrong way as such you just ask for a meeting with them, highlight the specific concerns and advise them that the only way you see is out of the company but it would be in the best interests of all if this was done via a settlement agreement to avoid unnecessary legal action

Customer : as its mainly been verbal or out of the office, so it would be his word against mine, I work in a team of 5 and the others in the team haven't had this problem, it's mainly a clash of personalities, however I have mentioned on numerous occasions I was feeling stressed and couldn't cope with the work load, and nothing was done, apart from a chat off site, but nothing in writing or resolved. I was off with stress about 3/4 years ago and the company paid me in full, I just had a back to work interview and everything has been ok up until my boss started work at the company about 9 months ago.
Ben Jones :

verbal or not - it has happened, you do not need formal written evidence for this]

Customer : Ok thank you, ***** ***** speak with HR for off record conversation, and state what's happened and what I would like, see what happens, I will get back you if I need further advise once I've spoken to them
Ben Jones :

you are most welcome. If you could please leave a rating for the service so far I would be grateful - you can always come back to me in the future f needed. Thank you

Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 2 years ago.
Hello since our last communication I have been back to my HR dept, and asked if we could reach a settlement agreement as I feel my boss and I have lost trust and confidence, I also stated that as I had told my boss I was under stress about 9-10 months ago and no steps were taken to help I eventually was signed off by my doctor. The Comapny did nothing to help until my 9th week off when they requested my permission for my current illness medical records and then to arrange a meeting to discuss absence management. After speaking with HR directly stating all my concerns and asked for a settlement agreement they came back with the following options, either return to work after the meeting they suggested, go on garden leave and get paid my notice period (3 months) or take notice period as lump sum, they have eat offered a settlement agreement or a tax free payment, I didn mention I would seek advise on constructive dismissal, which I would rather not do, is there anyway my company can work it so that I get my notice pay tax free?
Expert:  Ben Jones replied 2 years ago.
Hello, it is not that easy to arrange a tax-free payment under a settlement agreement, mainly because it is not the employer’s decision as to whether you get taxed or not, rather it is HMRC that would scrutinise that. There are various ways you can try it, such as by trying to get them to arrange termination under the guise of redundancy or to set aside certain compensation for loss of office, but you are best advice to discuss this with the solicitor who would be dealing with you if you were to agree a settlement agreement as each situation is unique and what works in one case may not necessarily be the best option in another.