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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 50149
Experience:  Qualified Solicitor
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My partner is off work sick with an ongoing skin condition

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My partner is off work sick with an ongoing skin condition for which he is receiving treatment. This is not a condition that can be cured but it can be controlled once the correct treatment is found. He has had 3 weeks off to date and has had some time off for appointments and tests over the past few years. He is a contracts supervisor for a company who have a council contract for ground maintenance. Sometimes he is asked to use diggers and other machinery when other staff are unavailable which exacebates the painful condtion he suffers from. His company have sent his manager round to see him and have indicated they cannot guarentee they will not ask him to use the heavy machinery should he return to work. This is not his main role as supervisor. His manager has telephoned to offer him 12000 pounds to leave should he wish. They indicated he would have to pay tax xon that amount should he accept.
He has had this job for 17 years and his salary is currentty around £30,000.
Two managers have visited to date. One came to collect his cerificate from the doctor. He has had many calls asking for certificates and if he is going back to work. They also said they will send him to occupational health. He needs advice on what to do and if the offer is a good one or not.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long has he worked there

JACUSTOMER-kwkathq- :

17 years

JACUSTOMER-kwkathq- :

Sorry Hi by the way

Ben Jones :

Thank you. Please leave this with me, I am mobile for most of today so it may be difficult to provide a full response straight away but I will get my advice ready and get back to you on here as soon as I can, certainly no later than this afternoon. Thanks for your patience.

JACUSTOMER-kwkathq- :

Thank you

Ben Jones :

Thanks for your patience. First of all he needs to consider whether he is classified as disabled in a legal sense as that will affect his rights in this situation.

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.

The duty to make reasonable adjustments is a strict one so 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. This is something he could use as a negotiating tool if he was to try and bargain over any settlement figure.

As to what he has been offered so far, there is no such thing as a good or bad offer really – essentially it is for the person to decide whether they are happy to accept what has been offered. But as a minimum I would probably look at getting his notice period (minimum 12 weeks), any accrued holidays and 3-6 months’ pay on top. Of course you can try and negotiate as high as you want but in the end you cannot force the employer to pay something which they do not want to so you will have to find some middle ground. However, if there is evidence of disability discrimination that could be used as a bargaining tool to try and increase the offer because the employer would not really want to be facing a discrimination claim. Finally, remember that the first offer is rarely the employer’s best and they will always have room for more.

JACUSTOMER-kwkathq- :

Thanks for the answer and we will visit the doctor on Monday to see if they can advise further re disability as he receives a war pension as he was a soldier and was shot in the arm. The injury does not prevent him doing most activities such as driving and operating machinary.

Ben Jones :

ok that is the first step because if he is disabled then his rights will be better and he could have more of a legal leg to stand on so try to determine that if possible

JACUSTOMER-kwkathq- :

Thanks for the advice it is very useful. Do I rate the answer now and pay?

Ben Jones and other Law Specialists are ready to help you
Customer: replied 3 years ago.

Hi my partner has now been told that his employer Lotus will use a contract dating back to1998 when he worked for a different company called SITA in a different role.That company lost the council contract and were repalced by Quadron who promoted my partner to supervisor, but Lotus say they do not have a copy of his contract or terms and conditions and as such will have to use the 1998 contract and terms and conditions. Quadron have told us they handed everything over to Lotus in April 2009 when they took over the contract. We have nothing other than proof that my partner applied to Lotus for the operations supervisor position and was given an interview and has been doing that job since Lotus took over. Today Lotus refused to give another employee a copy of the staff handbook for my partner. They said it was being ammended. We are very concerned.

Hi, what is the relevance of the contracts to the original query please - is anything in the contracts under dispute now?
Customer: replied 3 years ago.

So far they are saying nothing. it is unclear why they suddenly say he has a week to produce evidence that the 1998 terms and conditions changed while he was at Quadron. Why the rush and as he is meant to be resting and staying stress free in order to get better. This is not helping.

I am happy to pay a bonus for your extra help of course.

Thanks but I am unclear as to what your query in relation to this is exactly...if you could please clarify, thanks
Customer: replied 3 years ago.

Can the company legally use the contract from 1998 and why would his terms and conditions be different from the rest of the workforce? There has been talk that many contratcs have been lost by the company. If they have lost his paperwork then can they make him responsible for getting proof of his terms and conditions? He was tuped over on each occasion. Also if he is off sick should they be asking him to do this anyway? Maybe we should just wait to see what they do.

if he was TUPE'd over on each occasion then his original terms and conditions going back to the initial employment would still be applicable as TUPE preserves all existing terms and carries them over. If he was issued with new terms at some point since then they are the ones that would apply though so they will overrule the old ones. If that did not happen then it is entirely possible that his terms would be different than those of the employees which worked at the current company when he transferred over.
If he is off sick it does not mean they should not contact him at all but just keep the contact to a minimum and only for essential matters so if this is not a pressing issue then they should leave it until he returns. But as you said, it is best to wait and see what they say/do
Customer: replied 3 years ago.

For Ben Jones

It is all a bit of a mystery right now, I guess we will have to wait for their next move. Can I let you know what happens?

yes of course