Friend not being allowed back to work by her boss

[grimbell]

This is a request for a friend.

My friend had an accident in April while travelling home from work on the bus.
The accident left her with broken finger. The finger was strapped up and she returned back work without any time off.

Then in June she developed a nerve complaint linked to the broken finger which as lead to her being off work ever since.

Last Monday the GP said she could go back to work. The only problem my friend has is the movement in 3 fingers which mean there are 2 duties she cannot do . One is tucking in the bottom sheet on the bed and the other carrying luggage downstairs.

Her employer says they cannot alter her duties and has refused to allow her back to work. The GP has reluctantly signed her off for another week but after that there is no reason in the GP's mind for her to continuing to sign her off.

She is now feeling that she should just resign and give up. Can her employer insist on not allowing her back?

[Guest]

Re: Friend not being allowed back to work by her boss

If she cannot perform her duties, then the employers do not have to keep her employed. The inability of an employee to do a job, for whatever reason, is a valid reason for requiring her to stay off work, which could lead to her dismissal.

However, the Disability Discrimination Act 1995 makes it unlawful for employers with fifteen or more employees to discriminate against current or prospective employees with disabilities. The definition of ‘disability’ is: "a physical or mental impairment which has a substantial and long-term adverse effect on (a person's) ability to carry out normal day-to-day activities".

Under the Act, an employer who dismisses a disabled person for a reason relating to the disability would need to be able to justify this with a substantial and relevant reason. An employer cannot justify such treatment if the reason could be removed or made less than substantial, by a reasonable adjustment. For some employers and employees, reasonable adjustments might include part-time working, some additional sick leave, redeployment to other duties, or the transfer of minor duties to another employee.

Therefore, although she could resign, why would she do that, unless there is another reason that she does not want to remain employed?

[grimbell]

Re: Friend not being allowed back to work by her boss

hi

Thanks for your reply. My friend does not have to carry out the 2 duties she has trouble with on a daily basis and her employer had no problem with her working while the fingers were broken and strapped together but does now . She as been off for 4-5 months.

My friend is in receipt of SSP and as her GP is reluctant to sign her off and her employer has stated in 2 letters that there is nothing they can do to alter her duties she is now getting scared that she will be in a position of no money coming in.

She wants to get back to work but her boss keeps saying that she needs to be signed off if she cannot fulfil her full duties. It seems to be a stalemate situation and my friend is feeling very uncomfortable about it all.

The accident was not to do with work and was unfortunate but she feels that this should not stop her from working now and is very frustrated about the whole thing.
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Bugger......just did long reply and it got lost!

The 2 duties that my friend cannot do are not something she has to carry out everyday. She wants to get back to work as she is in receipt of SSP and as GP feels she is fit and boss says they cannot alter anything therefore she needs to be signed off, my friend is scared of being in a position of no money coming in.

Her boss had no problems with her working with 2 broken fingers strapped up but now it seems to be very different.

[Guest]

Re: Friend not being allowed back to work by her boss

If her her condition is not going to improve then she may need to accept the fact that she can no longer work for this employer.

Having said that, if she feels that she is being left with no option but to resign, then that might constitute a claim for wrongful constructive dismissal for breach of contract, but she would need to be sure that her employers have left her with no alternative.

As she is not required to carry out the duties that she has trouble with daily, is there a compromise that can be reached with her employer? It may be that she is being discriminated against if the employer is not willing to make reasonable adjustments to take into account her current condition. Reasonable adjustments in her case might be ensuring that she does not have to carry out the duties that she is currently having difficulty with. Presumably they can do this, given that she has not been there since June.

[grimbell]

Re: Friend not being allowed back to work by her boss

Hi

Thanks.

She works in a women's refuge, run by a charity. Her employer has sent two letters now stating they cannot alter things but that is it.

It does seem like they are waiting for her to resign but there is this stalemate of her boss refusing to allow her back which is frustrating my friend.

Thanks for the advice, I will talk to her tonight and see where things are now.

[scoobydoo]

Re: Friend not being allowed back to work by her boss

Also you called call ACAS they will offer free help I think

they have a website as well.

[grimbell]

Re: Friend not being allowed back to work by her boss

Hi

She tried ACAS but they said there wasn't much advice they could give!

[scoobydoo]

Re: Friend not being allowed back to work by her boss

Hi

She tried ACAS but they said there wasn't much advice they could give!

Really ? thats surprising as I thought that was their area of expertise. Ihave known then be quite helpful in the past.

I think it is a matter of checking employment law then a letter stating exactly what she can do and emphasising she does want to continue in the job.Emphasise exactly what you have said already about the tasks she is not able to do only being part of the job. And ask for thier final comments in writing.

then we will have a final decision in writing and can decide if there is anything else we can do.

There are people more expert than me so lets see what other comments you get on here.

then if you need help with a final letter I will give you a hand if you want

Scooby

[grimbell]

Re: Friend not being allowed back to work by her boss

Hi

The employer has again insisted on my friend take sick again !

They are taking advise from Pinnisula which is why ACAS said that there was not much advice. There are under 15 employees.

Friend is desperate for money so is applying for other jobs but feels that her present employer is just mucking her about in the hope she will resign and save her from sacking her.

Have advised friend to get a free half hour session with an employment solicitor if possible.

If she were to resign but put in the letter that she is only resigning because she feels she has no other choice would that help.

[Guest]

Re: Friend not being allowed back to work by her boss

She may do this and her resignation will then be treated as an actual dismissal by the employer, so she can claim Unfair Dismissal. However, in order to qualify for unfair dismissal, the employer's actions must have amounted to a fundamental breach of contract.

A breach of contract in her case could be argued as her job content has been changed without proper consultation and she is being treated as if she is incapable of carrying out her job where in fact, some reasonable adjustments to her duties could solve this issue.

Although she may resign over this and it may amount to constructive dismissal, it does not automatically follow that the dismissal is unfair. If she is going to rely on resigning and claiming unfair constructive dismissal, the actions of the employer must be a serious breach of contract.

Your suggestion that she visits an employment specialist is a very good one and she should be encouraged to take this up.

[Ragdog]

Re: Friend not being allowed back to work by her boss

Tell your friend that constructive dismissal is harder to prove than waiting to be paid off or sacked. If she leaves, the onus is on her to prove why she was forced to leave, if she is paid off or sacked, the onus is on the employer to prove they worked within the law.

Make sure she goes to a solicitor who is well versed in employment law, not someone who does a bit of everything.

Also, I can't speak for all Pinnunsula reps, but I came up against this company in a tribunal case, and the rep that I had the pleasure of dealing with was absolutely crap, and a real scumbag into the bargin - though my barrister kicked his ass up and down the tribunal office. It was quite amusing at times.

Pinnunsula tend to work on a monthly fee basis, whereas solicitors tend to charge by the hour. This makes employers think they are cheaper, but sometimes tribunals can drag on for years.

[grimbell]

Re: Friend not being allowed back to work by her boss

Hi Ragdog

Thanks for that. She is in the process of trying to get to see an employment solicitor.

I will try and get an update from her over the weekend.

thanks again