Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. How long have you worked there for?
Medical suspension can occur at any time, whether you have been off sick or not. It is basically a forced suspension by the employer when there are health and safety concerns, which make your presence in work unsafe. Whilst you can get a fit note to state that you are fit to attend work, this is just advisory and the final decision rests with the employer.
In terms of how to challenge this and the issues with the grievance, ultimately this could amount to constructive dismissal and/or disability discrimination.
This could potentially amount to constructive dismissal, which occurs when the following two elements are present:
· Serious breach of contract by the employer; and
· An acceptance of that breach by the employee, who in turn treats the contract of employment as at an end. The employee must act in response to the breach and must not delay any action too long.
A common breach by the employer occurs when it, or its employees, have broken the implied contractual term of trust and confidence. The conduct relied on could be a single act, or a series of less serious acts over a period of time, which together could be treated as serious enough (usually culminating in the 'last straw' scenario).
The affected employee would initially be expected to raise a formal grievance in order to officially bring their concerns to the employer's attention and give them an opportunity to try and resolve them. If the issues are so bad that the employee can't even face raising a grievance and going through the process, or if a grievance has been raised but has been unsuccessful, then they can consider resigning straight away.
If resignation appears to be the only option, it must be done without unreasonable delay so as not to give an impression that the employer's breach had been accepted. Any resignation would normally be with immediate effect and without providing any notice period. It is advisable to resign in writing, stating the reasons for the resignation and that this is being treated as constructive dismissal.
Following the resignation, the option of pursuing a claim for constructive dismissal exists. This is only available to employees who have at least 2 years' continuous service. There is a time limit of 3 months from the date of resignation to submit a claim in the employment tribunal.
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.
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The grievance is your only internal option to challenge these issues so if it is ignored then it may have to come down to you making a claim in tribunal. This would either be a constructive dismissal claim following your resignation, or a disability discrimination claim which you can make whilst still employed there. It depends if you feel you cannot continue working there as a result of all this.
The employer retains the final decision in terms of your health when it comes to workplace matters but if there is professional medical evidence to suggest otherwise and they have unreasonably failed to follow that advice then questions will be asked and that can form part of any potential claim
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Ok the issue here is that you cannot force the employer to act as they should, as you would want them or as any reasonable person would expect them to. In the end, they can act in a manner that makes it very difficult for you to continue working there. Sadly, no one can step in and force them to change their practices. So that is where the legal options I mentioned come in – in the end you have to make a choice to either continue there and fight them (this would have to be done internally using any grievance procedure or other internal complaint routes) or reign and pursue the constructive dismissal option. Hope this clarifies?