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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 49855
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I work at a primary school since Sep 2011 as a school

Customer Question

I work at a primary school since Sep 2011 as a school accounts officer also responsible for all attendance & pupil welfare. I’ve been off work since 14th July 2014 initially due to injuries following a car accident. However around Oct 2014 I developed severe hand pain keeping me at night. A scan revealed swelling in all the tendons in my hands. I was referred to a rheumatologist by my hand consultant (note I started having problems with my hands before the car accident). The doctor thought I may have rheumatoid arthritis (RA) . I also have carpal tunnel symptoms. I was started on a disease modifying drug on 22nd Dec 2014 & take approximately 12+ weeks t start working. They also suppress the immune system. I was sent a letter inviting me to a meeting on 9.3.15 by my headteacher Helen Swain (HS). I was allowed to take my son Jon with me. At the meeting I said that my son would be taking notes for me because of my hands. He was told that he was not allowed to do this (not reasonable adjustment allowed) and that notes would be made by HS and Bernadette McHugh (BM) HR consultant and a copy would be sent to me so that I would have the opportunity to make any comments & for all of us to then agree on a final copy. At the meeting my headteacher was hostile and aggressive & I was told the purpose of the meeting was to discuss my absence, its impact on the school and to warn me that my employment was at risk. I was asked to give an update on my medical condition. Gave update & explained my consultant said that once the drugs take effect he is confident that I will be able to remain in work. I also asked hospital about helping with occupational health assessment but they do not. HS then referred to a report written by Dr Jukes the occupational health (OH) doctor for the council. “If Julie is diagnosed with RA then quite clearly this would fall under the Equality Act. As such an employer needs to make reasonable adjustments where possible in order to help her remain healthy & well within the workplace. . If Julie starts on medication to treat RA, this will affect her immune system. It will therefore be advisable that she does not continue in her role as a first aider, as reducing contact with the children would significantly reduce the chances of picking up illnesses and infections”. HS said to make the above mentioned adjustment to my duties she was going to speak to the governors as she would need to reduce my hours and grade to cover the cost of employing someone (as not enough money in the budget) to cover this aspect of my job. HS said that she would get back to me once she has spoken to the governors to let me know by how many hours my job will be reduced by and what my new grade will be but that it will probably be one grade below what I’m currently on. The meeting proceeded with HS constantly putting obstacles in the way and giving reasons (some false) as to why it would be difficult to return to work. During the end of the meeting HS did not want to make any reasonable adjustments that I requested e.g. I asked if I have any flare ups in the future & need any short breaks could I have them and that I understood I would make up the time. I was told that another member of staff had the same condition & like her I would be expected to come into work just like anyone else and why should I be any different. After the meeting I received a letter by HS titled “Outcome of Case Conference” she states that I have received extensive medical advice & agreed to inform her of the outcome of my appointment with my consultant on 31st March. Both not true. HS says in her letter that if I do not return to work on 20th April she will refer the matter to the Governors for a view on my future employment & says that I apparently stated that I understood the procedure. I DO NOT UNDERSTAND THE PROCEDURE. It has not been explained to me. From the meeting we had I was told that I would simply be dismissed. This letter was received without the notes being sent to me which I chased HR for them & received the meeting notes by email 50 minutes later. The notes are not an accurate reflection of what happened. I have since emailed HS to ask about the outcome of her meeting with the governors & about the notes. She now says that there was no meeting ever planned & is now waiting to hear back from the OH doctor. She is refusing to answer any more of my questions. In the meantime the OH administrator has messed up & not sent out the latest OH report. I do not want to go back to this job. I have requested the email for the chair of governors but my school are refusing to give this to me. They say I must give them a letter to pass on to him. I spoke to my GP who has given me a fit note to return for 2 hrs a day for 2 months. They do not have this yet. I don’t know what to do now? Also if I leave and find out later that what is happening to my hands is as a result of my job can I still make a claim?

Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long have you worked there for?
Customer: replied 2 years ago.
Hello Mr Jones, I have worked at the school for 3 1/2 years. May I also add that my employers are now trying to put reasonable adjustments in place but I don't trust them hence why I don't want to return. I've recently been getting anxiety attacks at night because of all this. Also to clarify my consultant told neon the 31st that the carpal tunnel symptoms may not be related to the presumed rheumatoid arthritis which is why I'm thinking if it's related to my job. Thank you Julie
Expert:  Ben Jones replied 2 years ago.
Thank you and what specifically would you like to know about this situation, what are you hoping to achieve?
Customer: replied 2 years ago.
I don't want to be dismissed on the grounds of capability due to ill health as I'm worried it will affect my future employment.
I don't want to return to my job because of how I have been treated and the level of stress I would be under. I will be going back to hostile environment no matter how my employers will try to make things look good on paper. However I have worked for 3 local authorities now over approximately the last 10 years. Leaving my job now will mean I have a break in service which is going to affect my pension. At no point have I been offered alternative employment and considering that the role Borough of Kensington and Chelsea are now part of the tri borough surely being such a large employer they can find me alternative employment. I want to leave with a positive a positive written reference which I deserve. I don't want to leave without the school governors knowing how I have been treated as my headteacher is currently desperately trying to block me from letting them know what has happened and to ensure that my reputation is intact. I want to know if I have any claim that I can take to an industrial tribunal. The notes recorded at my absence meeting by the HR manager doing lots reflect what happened at the meeting and much of the content is untrue. I was categorically told I would be dismissed if I do not return to work on April 20 and know one has explained what the procedure is for dismissing me on capability grounds. Also following what my consultant at the hospital told me on 31 March The current diagnosis I have is still open to be confirmed and that the inflammatory arthritis and carpal tunnel symptoms may be two separate issues. I want to know that if I leave my job and some months down the line I discover that my carpal tunnel syndrome symptoms are caused by the amount of typing I've had to do in my job can I make a claim for compensation from my employers if I'm longer employed by them.
Expert:  Ben Jones replied 2 years ago.
Hello Julie, as far as dismissal is concerned, 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.
It is also important to consider the additional rights someone would have if the condition that is affecting them amounts to a 'disability'. In your circumstances it is clear that you meet this so you will be classified as being disabled. 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 of the employer, their business, the potential impact on other employees, the available resources, etc. Whilst legislation does not currently provide specific examples of what adjustments can be made, the following are examples that have been considered reasonable in case law over time:
• 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.
So in summary, if the employer has not taken time to investigate the true medical position, whether suitable employment was available and generally considered the effects the employee's continued absence would have on the business, any dismissal could potentially be unfair. In addition, if they have failed to make reasonable adjustments in the event the employee's condition amounted to a disability, this could also amount to disability discrimination.
The first step is to formally appeal the dismissal with the employer using the internal appeals procedure. After that all that can be done is to submit a claim for unfair dismissal in the employment tribunal (subject to having at least 2 years' continuous service), and/or pursue a claim for disability discrimination.
In relation to a potential claim for personal injury down the line, that would be possible regardless of whether you were dismissed or resigned. This is not linked to the termination of your employment so can be pursued as a separate claim if needed. You have 3 years from the date of injury or the date of diagnosis, if later, to make the claim.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
Customer: replied 2 years ago.

Thank you for your reply. I'm still not clear as to how to proceed with my expected return to work this Monday. I was thinking of writing a without prejudice letter and handing this in on Monday. I want to say that as I was not treated properly during the absence meeting as I was bullied and harassed throughout and no simple reasonable adjustment allowed that I no longer wish to stay employed as I do not trust them anymore. I would like to ask for a written reference and perhaps some compensation as no alternative employment was discussed or looked at and as leaving will break my service with the local authorities I would like compensation. Do you think this is a good idea even if now they are trying to put adjustments in place only because I complained during the meeting and my headteacher has obviously been told by HR that she overstepped the mark during the meeting which the HR consultant has tried to soften with her inaccurate notes of the meeting? I was told about writing a without prejudice letter the other day and It was suggested that I also see my GP and get a fit note to return to work so as to prevent being dismissed on medical grounds. My GP has given me a fit note to work for 2 hours a day for the next two months. I have not given this to my employer yet. Should I hand this certificate in with a without prejudice letter on Monday? If I do not return on Monday but do this instead can they still dismiss me?

Do you think I have a case to take to tribunal for what happened at the meeting? As much as my employers have tried to cover what happened up my headteacher has also spoken to the council doctor and confirmed with her that she cannot make a reasonable adjustment for me with regards ***** ***** the small first aiding element of my job and would need to look at reducing my hours and pay.

Please I need clarity on how to proceed. Thank you Julie

Expert:  Ben Jones replied 2 years ago.
you have nothing to lose by approaching them on a without prejudice basis to try and seek a compromise with them and part ways amicably. The worst is they say no and they should not treat you detrimentally as a result. So that is certainly an option. If you have a fit note then by all means send that to the employer - as mentioned they cannot go ahead and dismiss you just like that because if they do then the dismissal could be unfair and it can also be discriminatory.
In relation to making a claim the key is really whether the adjustments you are seeking are indeed something they cannot genuinely implement but they would need to provide strong justification that it is the case. It is a strict duty on their part to make the adjustments so only something which is clearly unreasonable will not qualify. You can ask for formal reasons as to why they believe what you have asked for is unreasonable or not possible to be implemented.
You also have the grievance procedure at your disposal should you require it and it will result in a formal grievance meeting where they will investigate your complaints and issue a formal reply. It should be heard b someone more independent, not the headteacher.
Does this clarify your position a bit more?