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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46142
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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HiI've been off work ill 10 months. The

Customer Question

HiI've been off work ill for approximately 10 months. The reason for this being work related stress which has worsened an existing disability my employer has constructive knowledge of. The stress was caused by my manager harassing and bullying me, some of which was in relation to my disability. I went through the grievance and appeal procedure and neither were upheld nor handled correctly (same individual had involvement with both).I am due to have a "case conference" which I've insisted must be by phone as due to my illness which my Doctor has verified I cannot attend in person. This will be in the next few weeks and although is meant to address issues like reasonable adjustments I have been informed may lead to dismissal.Today I was contacted by my employer to state my pay from next month will cease. I disputed this as we are meant to receive 6 months full pay, 6 months half. Next month I will have been absent for 11 months and had an OH assessment conducted within the past week stating if they implement "all reasonable adjustments" which since this Manager has come along they have failed to do I may be fit to consider returning within 4 - 6 weeks under a phased role.They have stated they are stopping pay short of 12 months as they are taking into account "all the sick leave I've accrued over 12 months". They couldn't confirm if disability leave had been discounted from this when questioned which I assume a large proportion of my 10 month absence may include.Is this acceptable particularly as a recent OH report states to implement adjustments and I could possibly return within just over a month if so?
Submitted: 11 months ago.
Category: Employment Law
Expert:  Remus2004 replied 11 months ago.
How long have you worked there?
Customer: replied 11 months ago.
16 years now.
Expert:  Ben Jones replied 11 months ago.
Hello, my name is ***** ***** my colleague has asked me to assist with your query as it is more my area of law. 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. I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46142
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Customer: replied 11 months ago.
Thanks for clarifying those points. So as I haven't exhausted my full sick pay as I should have 2 months left on half pay and the employer are aware I am disabled is this acceptable especially given that they have knowledge of said disability plus 4 OH reports to support this? They also could not confirm if disability related sickness absence had been deducted as per company policy or not.It is only the most recent OH report which states that I can possibly return within 4 - 6 weeks should all reasonable adjustments be implemented. The employer has already prior to most recent OH report stated they will not implement them so I will most likely face dismissal. I have been wary of constructive dismissal due to losing other rights (I have vast amounts of holiday owing) plus am aware this can be a difficult thing to win.
Expert:  Ben Jones replied 11 months ago.
I would not say this is reasonable behaviour and you have every right to enquire if disability-related leave has been discounted. It i true that constructive dismissal can be difficult to win but it is a last resort option. An alternative way out is to approach the employer on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under a settlement agreement, the employee gets compensated for leaving the company and in return promises not to make any claims against the employer in the future. It is essentially a clean break, although the employer does not have to agree to it so it will be subject to negotiation. In any event, there is nothing to lose by raising this possibility with them because you cannot be treated detrimentally for suggesting it and it would not be used against you.
Customer: replied 11 months ago.
I had heard of a settlement agreement but I thought that it was for an employer to offer as to be honest despite what the OH report states (i. e: consider returning in 4 - 6 wks which was never discussed) I don't feel 100% comfortable at doing so as no management support me. Even the grievance and appeal demonstrates how they have colluded.I still am awaiting this sickness case conference which ultimately decides if they can accommodate the reasonable adjustments (they have already said no) or dismiss. Should I bring up the subject of such an agreement then, wait for them to, engage a solicitor (bearing in mind I have little money) or is it more sensible to wait dismissal and then put in ET1 forms citing unfair dismissal and disability discrimination? I know the latter sometimes prompts some employers. Thanks
Expert:  Ben Jones replied 11 months ago.
You can suggest this at any stage, also they will usually pay for the legal advice you need to get that in place. Alternatively, if you wait for dismissal you will have to go through ACAS first before you claim and they will try ans negotiate on your behalf so you could end up with a settlement anyway without having to make a claim

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