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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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My line manager keeps trying to manage me on the welsh

Customer Question

my line manager keeps trying to manage me on the welsh ambulance service sickness policy eventhough I am not sick. he is intimidating me with suggestions I may lose my job down the line because my licence is revoked after a funny turn/ possible partial seizure. he told me to make up my lost earnings with a second job perhaps in my local one stop. I keep turning up for work to just be sent home again. I have had some alternative duties for a few weeks at a time but when they end my manager keeps telling me to go back on the sick. my doctor says this is highly inappropriate and has given me another fit to work other than driving. my line manager rang me again today just to tell me I might not be able to finish my paramedic course because I am not on operational duty and therefore I wont be able to do my student placement.
Submitted: 7 months ago.
Category: Law
Expert:  Ben Jones replied 7 months ago.

Hello how long have you worked there for?

Customer: replied 7 months ago.
Started in 2007
Expert:  Ben Jones replied 7 months ago.

So to be clear - you are unfit for driving but are able to do other work? Is any other work available, is there anything you can do in the long term?

Customer: replied 7 months ago.
To be clear unfit to drive and reapplying for car licence on June 24th so should have it by 24 th August as I haven't been diagnosed with a medical condition. I drive an ambulance though and in the worst case scenario that's 5 years without any further episodes. I am also training to be a paramedic alongside my medic role. The trust can't create a role for me. It's noteworthy that may managers have been found roles in similar circumstances though. My line manager is a new promotion. I can tell he is getting annoyed and appears to be working under the premise of being sympathetic but keeps insinuating negativity. The latest being a phone call a few hours ago to say it may no longer be ok for me to go on placement as a supernumerary. No rationale need for this call to be made at this point if you know what I mean. I am in a boat in the middle of a lake with no paddle. All I know is I will not declare myself sick to suit my manager. My doctor agrees there is nothing wrong with me. The union says my manager has a duty to manage my 'change of circumstances' some says the licence revoke is a medically enforced disability and should be managed as in the equality act.. I will be turning up for work again tomorrow. But I feel threatened and intimidated and the more I stand up for myself the more my manager and human resources are building their ammunition. Just need to know my rights and more specifically am I right not to keep going on and off the sick and accruing multiple sickness episodes.
Expert:  Ben Jones replied 7 months ago.

ok so by 24 Aug you should be fit to retun to your original job?

Customer: replied 7 months ago.
One thing - my case was raised at the highest level today. The director of human resources has emailed the HR girl dealing with me to ask for details of my case on the premise no employee should be coerced into taking sick leave. And to answer your query one chap in the ambulance service offered to drive while i attended but HR said no because it was an unreasonable thing for someone else to do?? It's all to suit really because I did all the driving for 6 months while the paramedic I was working with had a cataracts operation. They now say that shouldn't have happened. I don't believe I would have had the episode if I had not been subjected to a colleagues second hand smoke. It happened by accident but I felt ill straight after.
Customer: replied 7 months ago.
By 24 August I should have my licence back to drive a car. Possibly not an ambulance because that is a different class but it means I may have more opportunity to get to other stations to do other duties.
Expert:  Ben Jones replied 7 months ago.

Whilst the employer is talking about sickness policy this is really a capability issue because you are no longer capable of performing your role. This could allow the employer to remove you from the workplace and in more serious circumstances, even dismiss you, but I will explain the legal protection you have in this case and what could be expected of the employer.

Capability, where an employee is unable to perform their job due to ill health, is a potentially fair reasons for dismissing an employee under the Employment Rights Act 1996. The definition of ‘capability’ includes competence (skill and aptitude), health (any mental/physical quality) and qualifications.

Whether a capability dismissal is fair will depend on the particular circumstances and the procedure that was followed. The employer needs to show they had reasonable grounds to believe that the employee was incapable of performing their job and that nothing further could be done to assist them. In the end they need to show that dismissal was a reasonable decision to take. The courts have held that an important consideration is whether any reasonable employer would have waited longer in the circumstances before dismissing the employee.

When looking at the reasonableness of such a dismissal, the tribunal will usually look at the following elements:

· What was the nature of the illness

· Was the employee consulted over their position and did the employer try to ascertain the true medical position

· What was the likelihood of the employee returning to work or the illness reoccurring in the future

· The effect a prolonged absence would have on the business and the workforce

· The availability of other suitable employment that the employee could do instead

Dismissal must always be viewed as a last resort by the employer. Only when it is obvious that the employee cannot continue in their job and that there was nothing else available for them to do would dismissal become a fair option.

So if they are really considering removing you, then on the basis that your absence will not be indefinite and that you will have a licence and be able to do a wider variety of jobs very soon means that they should at the very least allow you to return to work then and see what options are there for you. In the meantime, they can only offer you work which is available – they do not have to create any jobs for you to be able to fir you into doing other duties but if there are suitable jobs which you can do then these should be considered and you should be allowed back to work, considering the limitations you currently have.

If they are intentionally not allowing you to return to work, even though here could be opportunities for you there, then that could be unfair treatment.

This is your basic legal position. I have more detailed advice for you in terms of the options you have to challenge this further if needed, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45315
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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Customer: replied 7 months ago.
Thank you for that. I think the problems here are multifaceted. There does not seem to be a precedence either. It's a bit odd in such a big public service. At present I am reliant on the fact the chief exec and her staff are under the impression that no member of staff should be on the sick unless they are sick ! Let's face it the Welsh ambulance service is huge. I have said quite categorically that I am happy to be on the end of my phone to fill in wherever whenever there is work. In the meantime I am doing my best to get my licence back. I think there might be a little more in the equalities act because even though I have not got epilepsy I had an episode of some description that has lead to a medically enforced disability and that to some extent the trust should be looking for me work in some role or another.
Expert:  Ben Jones replied 7 months ago.

The Equalities Act will only apply if you have a disability. 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.

What amounts to ‘reasonable adjustments’ can have a wide interpretation and often depends on the individual circumstances. Below are some examples:

  • making adjustments to work premises;
  • allocating some of the employee’s duties to others;
  • transferring the employee to fill an existing suitable vacancy;
  • altering the employee’s hours of work;
  • allowing the employee to be absent during working hours for rehabilitation, assessment or treatment connected to their disability;
  • acquiring or modifying specialist equipment;
  • providing supervision or other support.

If someone who is disabled is being treated unfavourably because of their disability or their employer has failed to make reasonable adjustments it would potentially amount to disability discrimination. The first step would be to raise a formal grievance. The next step would be to consider whether a claim for disability discrimination should be made in an employment tribunal (the time limit for claiming is only 3 months from the date of the alleged discriminatory act taking place).

Customer: replied 7 months ago.
Well that's a difficult one - within three months. Would that be from the date of event? 24 Feb. From the time I was sent home the first time or last time. Can't really pin down where the discrimination started if it were discrimination. I do have a copy of the grievance policy. What this boils down to surely is that I am not fully operational until I get a licence. First car then hopefully with medical evidence c1 and d1. It very much depends on how long the trust is willing to wait when no one genuinely knows for sure.
Customer: replied 7 months ago.
How long that is
Expert:  Ben Jones replied 7 months ago.

3 months fr the date of the discriminatory act unless you can show it was a continuing at of discrimination and then it is from the last act in that series

Customer: replied 7 months ago.
I recommended you on Twitter because your advice helped me clarify where the Welsh Ambulance Service may be genuinely without a policy to mange me or whether this was just a singleminded new manager who responded to HR advice lazily and too literally. Ultimately I had a look at the Trusts staff welfare policy and then asked the union to raise the matter at board level. I know have alternative duties and they have no intention of stopping my current studies just because I am not operational. Many Thanks Ben
Expert:  Ben Jones replied 7 months ago.

Glad it has been resolved and many thanks for the update

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