Not Fit For Work Note

[alibasset]

I work in the public sector as a cleaner, we have 3 scheduled spring cleans per year which my manager says, he wants everyone in at the same time so that he can keep an eye on everyone & that there will be no exceptions to people wanting to carry out their spring clean on a different date. I am currently signed off work for 6 weeks due to an operation aggreviated by my job, the problem I have is this, my Manager told me because I am missing the next spring clean, he wants me to do mine on the next official holiday which will be in a few week's after my return to work. I told him that I didn't think this was fair, as the scheduled clean was taking place whilst I am on sick leave, his said that it might be that I have already been paid the spring clean hours during previous holidays, I have no choice when I can take my holidays. Can anyone please advise me if they are allowed to get me to make up my hours because I have been on sick leave. Thank you

[bluebottle]

Re: Not Fit For Work Note

Hello Alibasset,

Sick Leave is exactly what it says, leave you have to take because your doctor has has declared you unfit to work. You should be paid in accordance with your contract or terms of employment, plus any Statutory Sick Pay (SSP), where applicable. When you say "offical holiday", do you mean Public Holiday? Also, has your doctor and Occupational Health Department put you on a phased return to work following your operation? If your manager is saying that you may have already been paid Spring Clean Hours during previous holidays, can he/she prove this through the payroll office? Are you a member of a trade union, e.g. Unison, Unite, GMB? Have you spoken to the HR Department about your manager's conduct?

It sounds to me that your manager isn't fully conversant with Health and Safety Law and doesn't seem to know what hours you've worked and when, something he/she should know or be expected to know.

I would certainly ask for a breakdown of the hours you have worked during the current financial year and when these "Spring Cleans" have been. Would I be correct in assuming that you are working in a hospital? I know they do deep cleans periodically, as we have the largest teaching hospital in Europe where I live and they do deep cleans periodically.

My gut feeling tells me that you need to find out exactly when and how many hours you have worked and been paid for during this current financial year and also the dates of "Spring Cleans". This should give you a clearer picture.

As far as I am aware, if you have been paid for hours you have not worked, the employer is entitled to ask you to work those hours or ask you to reimburse the money paid. If you are a trade union member, ask your Shop Steward to help you sort this out.

[alibasset]

Re: Not Fit For Work Note

Thank you for replying. I work in further education and I am lucky enough to remain on full pay whilst I am on sick leave up to six months. I do have all school holidays off with full pay & to carry out three scheduled spring cleans during three seperate week's of the year, my manager said to everyone that there will be no exceptions for anyone wanting to change the date of a spring clean, but, when it come's to me being on sick leave he seems quite happy to change the date. I am not in any Union at the moment. I have not spoken to HR about this as my manager told me this as I was going out of the door at the end of my last shift before going on sick leave, even though I had given him two month's notice about my operation. I have no problem in re-imbursing them the money but, I just wanted to clarify my position about being on sick leave when there is a scheduled spring clean taking place so that, I am prepared for when I go back to work. Also, on another note am I right in thinking that I am entitled to claim back two week's holiday which fell whilst I was on sick leave? If so, can I give my employer the option to pay me for those two week's or, give me the time off.
Thank you so much for all your help.

[bluebottle]

Re: Not Fit For Work Note

Thank you for replying. I work in further education and I am lucky enough to remain on full pay whilst I am on sick leave up to six months. I do have all school holidays off with full pay & to carry out three scheduled spring cleans during three seperate week's of the year, my manager said to everyone that there will be no exceptions for anyone wanting to change the date of a spring clean, but, when it come's to me being on sick leave he seems quite happy to change the date. I am not in any Union at the moment. I have not spoken to HR about this as my manager told me this as I was going out of the door at the end of my last shift before going on sick leave, even though I had given him two month's notice about my operation. I have no problem in re-imbursing them the money but, I just wanted to clarify my position about being on sick leave when there is a scheduled spring clean taking place so that, I am prepared for when I go back to work. Also, on another note am I right in thinking that I am entitled to claim back two week's holiday which fell whilst I was on sick leave? If so, can I give my employer the option to pay me for those two week's or, give me the time off.
Thank you so much for all your help.

Hello again Ali,

Your manager seems incapable of organising the proverbial p***-up in a brewery, let alone run the department they are supposed to be in charge of.

You gave them two months' notice of the date of your operation, which would have been deemed necessary by a consultant surgeon. Having given your manager that amount of advance notice, they should have arranged for cover whilst you were off sick. It is common practice now for employers to seek an occupational health opinion before allowing a person to return to work after a significant period of sick leave. Normally, four weeks is enough to trigger this. Failure to seek an occupational health opinion can invalidate an employer's Employer's Liability Insurance and mean that they are committing an offence by employing persons without a valid Certificate of Employer's Liability Insurance being in force.

As for going back to work, I would be guided by the surgeon in charge of your case and occupational health, not your manager.

Turning to your specific question about leave not taken, I have been in this position myself and can tell you that, if you will be continuing in your employment, you cannot be paid for it, only have it carried over to the next leave year. This is due to a ruling by the European Court of Justice. If you will be leaving your employment, then you should be able to claim payment as this would then count as "accrued holiday pay".

If you are still in any doubt, speak to the Arbitration Conciliation and Advisory Service (ACAS) who are very helpful in employment matters. They are also impartial and their advice is free.

[teaboy2]

Re: Not Fit For Work Note

Too add to the advice that blue bottle has given, which is excellent advice by the way.

When returning to work the employer must carry out a risk assement and can not simply throw you in at the deepend and expect you to just get on with the job. There must be a phased return to work, which would be light duties, where your gradually overtime returned to your full duties. Without this, and as you have had an operation, then returning you to full duties may well aggravate the problem you have and be counter productive in terms of your recovery, which would be negligence and a likely breach of health and safety regulations by the employer.

Not only that but under a contract of employment their is an implied term where the employer has a duty of care towards their employees, any action by the employer that would be counter productive to your recover or aggravates the problem you originally had that required the operation or even the healing process as a result of the operation. Would be a breach of a the employers duty of care - Which would also, not only negligence on the employers part, but also a breach of contract.

Now their may be criminal charges the employer could face if your caused further injury as a result of the employers negligence, which am sure Blue Bottle could share with us given his expeirence in law enforcement.

[alibasset]

Re: Not Fit For Work Note

Thank you for replying. I work in further education and I am lucky enough to remain on full pay whilst I am on sick leave up to six months. I do have all school holidays off with full pay & to carry out three spring cleans during three seperate week's of the year. I am not in any Union at the moment. I have not spoken to HR about this as my manager told me this as I was going out of the door at the end of my last shift before going on sick leave, even though I had given him two month's notice about my operation. I have no problem in re-imbursing them the money but, I just wanted to clarify my position about being on sick leave when there is a scheduled spring clean taking place so that, I am prepared for when I go back to work. Also, on another note am I rig


I agee with your first line. I had the same operation done 5 months ago but, it needed to be done in 2 stages. When I returned to work the last time I was never asked to see an Occupational Health Officer for their opinion. I was never offered an option of phased back to work. What I did get was pressure from HR phoning me at home after being on sick leave for only 3 weeks (after telling them right from the start that I would need at least 6 week's off work) that I should go back to work and that it wasn't fair on my work colleagues. I could understand it to a certain extent, if I had regular time off but, my time keeping is second to none and I have only ever had 5 days sick leave in 3 years. By the way, to answer a point teaboy2 made about a risk assessment being carried out, I know that one was not done. I was asked on my return to work would I need any help, I said yes please, knowing that this would soon disappear, gues what? I was right, after two day's no one wanted to help.
I would like to say BIG thank you to you both for your advice.

[teaboy2]

Re: Not Fit For Work Note

If HR were constantly phoning you whilst aware that your doctor had declared you unfit for work for a period of 6 weeks and their calls were within that period, then that is harassment contary to the protection from harassment act 1997. Am sure Blue Bottle will agree with me their.

My advice would be to make a formal grievance about lack of occupational health and non existant risk assement that takes into account your condition and the work required to do, as well as the lack of a phased return to work and harassment from HR constantly phoning you to return to work in the first 3 weeks on sick leave when they were more than aware that you doctor had declared you unfit to work for a full 6 week in order for you to recover from your first operation. Also point out their is an implied term in employment contract of an employers duty of care towards their employees and you fail they are in breach of this and thus in breach of your employment contract as without a risk assement and a phased return to work, then full duties will likely hamper your recovery and may even cause for damage requiring you to take more time off. There is also health and safety issues in which this would fall under which the employer may be in breach of as a result of no risk assement or occupational health. Also make it clear it is not only unreasonable to expect you to do a full spring clean upon your return but also unfair given your currently recovering from an operation limiting you to lighter duties untill you have fully recovered and no risk of further damage is likely to occur.

I would also speak to your surgeon and ask them to write a letter on your behalf to accompany your formal grievance and sent them both in the same envelope, recorded delivery.

Blue bottle may wish to add suggestions as to what else to include in the grievance letter, so please wait for blue bottle to add his thoughts before writing the letter.

[alibasset]

Re: Not Fit For Work Note

Thank you so much for giving me really good advice. It is nice to know that people like myself can receive geniune support from other members. I know other cleaners there like myself, feel very under-valued & feel that management think we do not know our rights or, feel that we are not capable of finding things out for ourselves but, with people like you it gives us the courage to tackle our grievances. Thanks again.

[teaboy2]

Re: Not Fit For Work Note

Your more than welcome - Unfortunately its not just your employers that feel they can mistreat employees or that they do not have to abide by employment or safety laws on the basis that the employee doesn't know their rights. But end of the day, if it feels wrong then it probably is wrong, and thats when you know your rights are being abused.

[bluebottle]

Re: Not Fit For Work Note

Too add to the advice that blue bottle has given, which is excellent advice by the way.

When returning to work the employer must carry out a risk assement and can not simply throw you in at the deepend and expect you to just get on with the job. There must be a phased return to work, which would be light duties, where your gradually overtime returned to your full duties. Without this, and as you have had an operation, then returning you to full duties may well aggravate the problem you have and be counter productive in terms of your recovery, which would be negligence and a likely breach of health and safety regulations by the employer.

Not only that but under a contract of employment their is an implied term where the employer has a duty of care towards their employees, any action by the employer that would be counter productive to your recover or aggravates the problem you originally had that required the operation or even the healing process as a result of the operation. Would be a breach of a the employers duty of care - Which would also, not only negligence on the employers part, but also a breach of contract.

Now their may be criminal charges the employer could face if your caused further injury as a result of the employers negligence, which am sure Blue Bottle could share with us given his expeirence in law enforcement.

Hello again Ali,

Teaboy has explained the risks your employer could face for not complying with health and safety at work legislation in terms that even someone with a limited knowledge of the law can understand.

As Teaboy correctly states, your employer has a statutory duty under Section 2, Health and Safety at Work Act 1974 to ensure your safety whilst you are at work, to ensure a safe working environment and that your health is not compromised or jeopardised in any way. Having undergone an operation with a six-week recovery period, as Teaboy says, you are going to be on a phased return to work, whatever. Before you return to work, your employer MUST, BY LAW, carry out a risk assessment before allowing you back into the workplace. This is why many employers seek an occupational health assessment. This satisfies the statutory requirement to carry out a risk assessment under Regulation 3, Management of Health and Safety at Work Regulations 1999. Failure to carry out a risk assessment is an offence.

I would add that you, as an employee, have a statutory duty, under Section 7, Health and Safety at Law Act 1974, to ensure your own health and safety and to assist your employer in complying with their statutory obligations under Sections 2 and 3, Health and Safety at Work Act 1974, including those persons who may be affected by your employers activities and anyone who may be affected by yours and their action or omissions.

As for your employer's HR department ringing you up and pressuring you to return to work after only three weeks, despite you having previously informed them you would be off for six weeks, what you need to understand is that a lot of those who work in HR have a very limited knowledge of the law and, in my considered opinion, do not appear to live on the same planet as the rest of us. They, of all people, should know or ought to know that a risk assessment is obligatory. It is not an option and ignorance of the law is neither a defence or an excuse. Their failure to seek an occupational health opinion, the last time you were off sick, means that they failed to carry out a risk assessment, which is an offence, and their Employer's Liability Insurance is, probably, invalid, meaning that they are committing an offence by employing people without vaild Employer's Liability Insurance.

I hate to say this, Ali, but the situation is, on the face of it, very serious, as your employer is taking a totally cavalier attitude to health and safety at work. I am going to advise you to speak to the Health and Safety Executive (HSE) as a matter of urgency. They are very helpful and should be able to advise you how best to go about addressing the situation. If they advise that you need to report your employer's attitude to OFSTED or one of the HSE Inspectorates or your local council's Environmental Health Department, who deal with health and safety issues relating to certain types of premises, they will do so.

Personally, I wouldn't take anymore nonsense from your employers. Your health is paramount and the most precious thing any of us living on this planet possess. Don't let your employers put your health at risk. Once you have spoken to the HSE, come back onto this thread and let us know what they have said. If need be, we will guide you through any grievance letter that may require to be written. If HSE advise they are going to take enforcement action, it is likely they will ask for a Statement of Witness from you and, possibly, a report from your surgeon.

Regards,

Bluebottle

[bluebottle]

Re: Not Fit For Work Note

If HR were constantly phoning you whilst aware that your doctor had declared you unfit for work for a period of 6 weeks and their calls were within that period, then that is harassment contary to the protection from harassment act 1997. Am sure Blue Bottle will agree with me their.

My advice would be to make a formal grievance about lack of occupational health and non existant risk assement that takes into account your condition and the work required to do, as well as the lack of a phased return to work and harassment from HR constantly phoning you to return to work in the first 3 weeks on sick leave when they were more than aware that you doctor had declared you unfit to work for a full 6 week in order for you to recover from your first operation. Also point out their is an implied term in employment contract of an employers duty of care towards their employees and you fail they are in breach of this and thus in breach of your employment contract as without a risk assement and a phased return to work, then full duties will likely hamper your recovery and may even cause for damage requiring you to take more time off. There is also health and safety issues in which this would fall under which the employer may be in breach of as a result of no risk assement or occupational health. Also make it clear it is not only unreasonable to expect you to do a full spring clean upon your return but also unfair given your currently recovering from an operation limiting you to lighter duties untill you have fully recovered and no risk of further damage is likely to occur.

I would also speak to your surgeon and ask them to write a letter on your behalf to accompany your formal grievance and sent them both in the same envelope, recorded delivery.

Blue bottle may wish to add suggestions as to what else to include in the grievance letter, so please wait for blue bottle to add his thoughts before writing the letter.

I totally agree with you, Teaboy, that Ali is being harassed enough for it to constitute an offence under the Protection from Harassment Act 1997. As long as the harassment has occurred on at least two occasions, an offence has been committed.

I have advised Ali to speak to the Health and Safety Executive as a matter of urgency. His employer is taking a totally cavalier attitude to health and safety and failing to seek an OH opinion means that their Employer's Liability Insurance is probably invalid. That is an offence in itself.

[teaboy2]

Re: Not Fit For Work Note

I totally agree with you, Teaboy, that Ali is being harassed enough for it to constitute an offence under the Protection from Harassment Act 1997. As long as the harassment has occurred on at least two occasions, an offence has been committed.

I have advised Ali to speak to the Health and Safety Executive as a matter of urgency. His employer is taking a totally cavalier attitude to health and safety and failing to seek an OH opinion means that their Employer's Liability Insurance is probably invalid. That is an offence in itself.

In that case I agree it would be best to see what the HSE has to say before committing to a grievance letter just yet. As what HSE says will likely give more authority in any grievance letter that is written to the employer.

[bluebottle]

Re: Not Fit For Work Note

I totally agree with you, Teaboy. Thanks.

Bluebottle

[Sapphire]

Re: Not Fit For Work Note

Thank you so much for giving me really good advice. It is nice to know that people like myself can receive geniune support from other members. I know other cleaners there like myself, feel very under-valued & feel that management think we do not know our rights or, feel that we are not capable of finding things out for ourselves but, with people like you it gives us the courage to tackle our grievances. Thanks again.

Ali don't put yourself down, cleaners are the very base that a good business is built on, without a good cleaner a business suffers as the rest of the staff don't want to be 'up to standard'. I should know we've been unable to find a reliable good cleaner for ages.

[alibasset]

Re: Not Fit For Work Note

Thank you for that Sapphy. I certainly do stand up for myself and others at work who are afraid to say anything, sometimes it's difficult to say the right thing when management come out with a load of muddled up jargon to try & confuse you but, I will always check something out. I think it might be time to join the Union. Thanks again for all your support, it is very much appreciated.