Dismissal after a work injury

[aladdin]

It is a very long story but my current employer is making a change to my role . I am in a fix term contract and have been for the last 16 years. Now the change in my contract is one my employer knows I cannot accept because or personal circumstances. This is also happening after I injured myself at work. I am going to start talking and attending meetings to see what my options are but *I want to know If as I have RSI on my hand, can I argue I am not able to apply for new job whilst I am recovering? . There probably is a lot more on legal terms but I really want to know what arguments that can put forwards when it come to my injury and perhaps negotiating redundancy compensation?*

[ULA]

Sorry I need to ask some questions first before I can provide a more thorough response:

1. Have you been continuously employed on a series of fixed term contracts for the last 16 years? If not c

an you explain the nature of your fixed term contracts?*
2. Has work acknowledge that your RSI is a work related injury?
3. What type of contract have you now been offered?
4. Are you aware that after 4 years of continous employment on fixed term contract you may have automatically become a permanent employee unless your employer has a good business reason not to do so or a collective agreement removes that right?*

Thank you

[aladdin]

Hi Thank you for your email. My fix term contracts have been continuously renewed. My RSI is work related and they know this. The new contract is exactly the same but they are asking for flexible working but they know I have carers responsibilities so I cannot day yes to the changes and carry on. I have sent them a letter asking for permanece but have to wait 21 days? I only sent it on the 2nd . They have made me a without predispuso e offer which I am trying to delay till I see if they give me the permanent contract. Hope all makes sense? I have been told not to speak about this but I need advice*

[ULA]

Do you know why you have had to ask to be made permanent and why there is a 21 day response time? is there some sort of policy or collective agreement about this?
Is the offer based on some form of settlement agreement to leave the company?

[aladdin]

I believe I have asked for a permanent contract as I should have more rights? I am trying to read a lot. Not sure why 21 days but I believe that is what I have to wait. I cannot accept the changes to the role as that would mean dismissing my caring responsibilities and not being home until at least 8pm most nights and I have young children and a disable husband so they have offer me a payment settlement to leave but even tough I want to leave as I feel they are discriminating towards me for putting this obstacle in front of me when they now very well I cannot accept, I feel the settlement is not enough considering I am only bread winner and I will have to apply for jobs with a pay cut of at least £10000 as I am not qualified to do anything with doing and I have earn my grade through the years working on a very specialised job. I have a meeting to ask questions about this offer of settlement but I am lost

[ULA]

Unless there

your employer has a good business reason not to do so or a collective agreement removes that right you may already have automatically become a permanent employee on completion of 4 years service.

If they are offering you a settlement agreement then as part of that you are entitled to independent legal advice for which your employer will be required to make a contribution to the cost.*

If you are treated as a permanent employer then from what you have said about your caring responsibility, particularly your disabled husband, then I would just like to highlight the issue of "discrimination by association". Here is a link to a site that may help explain it in more detail for you.

https://www.stammeringlaw.org.uk/dis...y-association/

I am not saying it would definitely apply but may be worth some research.
*

[aladdin]

I have asked for my contact to be made permanent as I don’t know if it has automatically converted. My latest contract said it expired 31/03/2020 but so have my previous contracts and then are renewed after funding has been approved. My issue here is to prove discrimination as the only change that has been added is one my employer knows I cannot accept . Discrimination by association was previously mentioned to me by a doctor but never looked into it as at that time I did not know this was coming. Thank you for the link. So you are saying discrimination by association only applies on permanent contracts?*

[aladdin]

I must clarify I have not been dismissed as such but I cannot sign my next contract because of the added conditions to the role. And I should say I don’t want my job back as I know it would be full of stress as it has been and I would probably find myself in this situation or worse in the next five years. For me it is about proving they are discriminating by asking me to work flexible work patterns they know I am not able to because of my children and my husband. Also I want to be able to negotiate a better settlement offer as I am the only bread winner, I don’t know how long it will take me to get another job and if successful in getting new work I am looking at patchy of £10000 or more a year. Where do I stand with this? Can I argue loss of earnings as well a discrimination and secure a fairer payment settlement?*

[ULA]

So, the 21 days is the timescale given by an employer to respond to any request about the permanency of a contract after 4 years of continuous fixed term contracts. If they are to deny that you are a permanent member of staff, they would need to provide you full reasons why they believe you do not qualify in that time period.

A fixed term contract employee has the same rights as permanent employees for the purpose of discrimination claims, what I am not entirely clear on is whether that covers discrimination by association. If so, then what you would need to prove is that you are being treated less favourably because of your husband’s disability and the carer responsibility that you have. Are other staff working or being asked to work flexible patterns?

If you are a permanent employee, then your employer would need to follow a fair process to implement a significant change in your terms and conditions such as a change to your working hours and for this they would need to fully consult with you. However, if your employer has given reasonable and due consideration to objections and alternative suggestions that you put forward, but deem those suggestions to be unworkable, then they can terminate your original contract and offer a new one in its place with the new working pattern.

I have tried to give you the options as I see it based on whether you are confirmed as a permanent employee or still on a fixed term contract, which I hope helps.

In regard to your RSI injury are you still working or are you currently signed off sick whilst you recover? If you are still off what is the prognosis for your return to work? If you are back at work has there been a need for reasonable adjustments to be made?

[aladdin]

Thank you so much for your reply. *So as i understand if I am permanent if my boss *changes my job description I can refuse and if the make me redundant then I can claim unfair dismissal? Is that the same for fix term?*
abiut my injury I was told to reduce the number of hours *do that particular task that caused the injury to see if that helps but still working and still hurting so I need to GP and see what they say but I am afraid they will put me off sick just when all this is happening but my priority now is to get my hand back to good health if I have to apply for work which looks very likely. My boss is being unreasonable and difficult. I cannot wait for this to finish.*

[ULA]

If you were permanent, then your employer would need to follow a fair process to implement a significant change, by which they would need to fully consult with you and agree any changes. If you do not agree the law does recognise that employers have to adapt to changing market conditions, and that sometimes the contract of employment must be varied to reflect this.

If your employer has given reasonable and due consideration to objections and alternative suggestions that you put forward, but deem those suggestions to be unworkable, then they can terminate your original contract and offer a new one in its place on the new terms.

If you did not agree to the changes, then you would have to raise a grievance. If you don’t tell your employer you disagree with a change, this will be taken to mean that you’ve accepted it. You would have to do this straight away, or as soon as possible after the change has been introduced.

You could continue to work 'under protest' for a while but you cannot do this indefinitely without taking further action. This may mean making a claim to an employment tribunal, or, in some extreme situations, resigning from your job and claiming 'constructive unfair dismissal’ which is very difficult in a tribunal to prove.

There would not be a redundancy situation as the role still needs to be carried out.

If you are fixed term and since you have been offered a new contract there is no dismissal situation. However the test is around the conditions of that contract since your

employer cannot offer you a contract or contract renewal on less favourable terms than a permanent employee unless it can be justified objectively. This fact is a general one and does not take account of the early posts around the possibility of discrimination by association.

In regard to your RSI injury then you really need to be guided by your GP and what needs to be done for a satisfactory recovery.*
*

[atticus]

In any case, if you are injured at work, then you are obliged to pay compensation and issue a sick leave.

Spammers don't half write some garbage!