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Ben Jones
Ben Jones, UK Lawyer
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I am a retained firefighter and was put on restricted duties

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I am a retained firefighter and was put on restricted duties 18 months ago after I had a minor cardiac event during a BA drill.
I was messed about for 6 months waiting to get occupational health appointments and a subsequent specialist appointment.
After specialist appointment, he said I had a condition but was ok to return to duties but risk assessment needed to be carried out for breathing apparatus.
I was allowed back as an operational firefighter for 9 months whilst they decided who should carry out the risk assessment and now I have been referred back to occupational health again and taken off the run again.
After my meeting with Occupational Health Practitioner, he is not prepared to say I'm fit for any operational duties but I disagree as I had been doing it for the 9 months beforehand.
My question is, can I override the Occy Health Practioners opinion and put myself back on the run whilst waiting for the risk assessment around the use of BA?
(By the way, my GP agrees with me that I can work but that BA is not advisable at this time).
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. Does your contract state that your employer can rely on OH or how much influence they have on such matters?
Customer: replied 1 year ago.
No. There is no mention of it in my contract of employment. I can't find an internal policy on it either.
the occupational health team is outsourced now and quite frankly don't seem as competent as our old brigade doctor. Nobody wants to be responsible for making a decision, hence it's taken 18 months so far.If they won't let me go back on the run then I feel I've either got to over ride the docs opinion myself or resign and consider a constructive dismissal claim.
Hello, sorry I was offline this morning. The employer will have a duty under common law and under health and safety regulations to ensure our health and wellbeing at work. In doing so they can enlist the help of OH if they need a more professional opinion on what is and isn’t safe. So a situation may arise when an employee wishes to return to work when OH have not agreed it, or if they are still officially signed off under their current fit note. This can lead to uncertainty about the employee's fitness to return and concern that their return could present a health and safety risk to the employee or others. Where an employee indicates an intention to return to work in such circumstances, it may be appropriate to obtain further medical advice and undertake a risk assessment prior to sanctioning their return to the workplace. For example, your GP may be willing to provide a letter to that effect, which may provide sufficient comfort to the employer that the employee is fit to return and reduce any health and safety concerns. If the employee is unable or unwilling to provide evidence that they are sufficiently recovered then the employer is not obliged to allow them to return to work. Equally if an employee does provide evidence of their fitness to work but the employer continues to have reasonable concerns about their return to work then it may be appropriate to ask them to remain at home whilst the situation is clarified. If that was to happen then such a decision could amount to a breach of trust and confidence, which could allow you to claim constructive dismissal. I suggest you pursue this via the grievance route first and only if it remains unresolved to consider the constructive dismissal option. This is your basic legal position. I have more detailed advice for you in terms of the law on constructive dismissal and how it would apply here, 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
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Thank you. So as mentioned, 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. Just to make a final, yet important point, that constructive dismissal can be a difficult claim to win as the burden of proof is entirely on the employee to show the required elements of a claim were present. Therefore, it should only be used as a last resort.
Customer: replied 1 year ago.
Thank you Ben.
From my side, I have a condition where the benefits of surgery/treatment would be small and do not currently outweigh the risks and therefore the specialist is not recommending treatment at this time.
I have informed the employer that as there is a foreseeable risk of a problem during a BA situation again (this is what triggered a tachycardia episode previously), then they must risk assess me wearing BA.
As you say, the employer has duties under H&S laws and the sticking point seems to be around who will carry out a risk assessment of my condition and how that could be affected using BA equipment.
The brigade managers are passing the buck to Occy Health and vice versa leaving me stuck in the middle.
I know that the brigade stance is that I must be able to use BA equipment as a firefighter but I'm not sure if I have a legal basis to ask them to make reasonable adjustments (I.e never wear BA again) or pursue the risk assessment that they ought to be doing.
Also, after 18 months of indecision, how much longer do I leave it before I consider constructive dismissal option?
I don't want to be seen as accepting the situation/stalemate that we are now in.
The issue with having waited so long for constructive dismissal is that it may be too late for it now because it must be done in response to the breach and without undue delay, so having left it for so long may indeed imply you h accepted the terms. That is why in the circumstances it my be best to try the settlement route instead as it is the least risky