Employment Law and am i being treated unfairly

[taken]

I have been injured and have been signed off sick for a further period by a surgeon / consultant pending an operation. My manager cannot understand and feels that I can return to work to do my or a job for a few hours a day. I then went back and raised this with the surgeon who has advised that I should not return to work. The manager believes the company can make every effort to ensure I work just as comfortably at work than I would at home. Insisting his job is to ensure that I return to work as soon as possible. The manager has been cagey by stating health is more important but fails to understand that the conditions at work are not the same as rest at home. I feel even more stressed now, as I am being made to feel that I am not making an effort to return to the beloved company who adhere to policy not to any empathy. I have been asked other questions as to how soon can i return after the operation, which neither myself or the surgeon knows. I also feel this has now also put me in a difficult future position in returning to work given the business relationship is somewhat damaged given our heated discussion. Is this pressure being applied as the company are possible looking for some form of constructive dismissal, is this unreasonable harassament or would this lead to constructive dismissal. Please also be aware the company have and continue to review and there may be a likelihood of further redundancies during 2013, this may not be my role but given 12 redundancies or so in 2012, some 10% of the workforce, there is a ongoing strategic review.

[Nikolai]

Re: Employment Law and am i being treated unfairly

Were you injured at work or elsewhere? How long have you worked there? It depends how long you're likely to be off sick really. Until you have an idea of that it's not easy to decide what to do. Is work paying you in your absence? Just thinking aloud, do work have a doctor's letter? Your manager might think you're taking advantage, but won't be able to argue with a medical opinion in writing. However this has disadvantages.
You need to be careful, as dismissal on grounds of capability is potentially fair, and you may have an uphill battle showing otherwise. The danger is that work may decide that your poor health is preventing you from doing your job, and terminate your employment on that basis. They have to act in a reasonable manner, as do you, and I think this implies they would have to wait a reasonable time before dismissing you, but that's the disadvantage of a letter from the consultant - it may give an estimate of time for your absence, so be aware.

[labman]

Re: Employment Law and am i being treated unfairly

Are you in a union?

I doubt your employer knows better than a qualified surgeon. Have any of their requests been put in writing?

[taken]

Re: Employment Law and am i being treated unfairly

Thanks Nikolai,
I was injured playing football, knee injury, believed to be ligaments and cartilage. I have worked for the company for 3 years and in this time up until this accident, I have only ever had 5 days in total illness off. They continue to pay me sick pay. I won't know until next week how long I will be off pending the operation. I am not a manual worker, office based but but constantly up and down on my feet. All I have continued to do is follow medical guidance. I had a heated discussion on Friday following a revised proposal they (work) e mailed to me at home to send to the suregeon, which I did. The following day I was asked if I had heard back which I hadn't nor had I contacted the surgeon to chase up why he had not replied to my e-mail, which my line manager believes is not unreasonable. I also raised that my surgeon had no obligation to reply or even agree to my returning to work before my operation. This was challenged and my LM said he had to reply.. He has now also requested I consider occupational health, which given what I have read on this, I don't think it is necessary. I will clearly know more next week after the op, what damage I have done and what the schedule is for recovery. To date this is only my 3rd week off, one of the weeks prior post injury was my holiday, which I have said may now need to be cancelled, having read the sickneess policy, they may now try to ensure that one of my weeks of sickness is to be used as my holiday, ie I cannot claim them back. Given the 3 e-mails and various telephone calls since the 2nd January when I was given the news of the operation, I have not known any company adopt this kind of approach for their employees. There appears to be a lot of time and constructive effort with e-mails and phone calls about what is going on...no once asking How are you or how is the knee..

[taken]

Re: Employment Law and am i being treated unfairly

Thanks for coming back to me. All requests have either been on a recorded line and also on e-mail to me at home. I am not in a union. Please also read my reply to Nikolai..

[bluebottle]

Re: Employment Law and am i being treated unfairly

If a surgeon has told you that you should refrain from work and that if you do return to work, this could cause the injury to worsen, thereby retarding your return to work or affecting your ability to work, your manager needs to have it made clear to them, in no uncertain terms, that they are, potentially, in breach of Health & Safety at Work legislation and Social Security regulations.

Suggesting an Occupational Health assessment is not unreasonable and is, in fact, part of an employer's statutory obligations under Regulation 3, Management of Health & Safety at Work Regulations 1999 to conduct a risk assessment. However, orthopaedic injuries of the sort you have sustained - knee injury - are difficult to assess without first conducting an arthoscopy (an internal examination of the knee joint using a miniature tv camera) to determine the extent of damage to the cruciate ligaments, femoral processes (bumps on the lower end of the femur), tibial tubicle (top end of the tibia), patella (knee-cap), synovial capsule (the fluid-filled sleeve around the knee joint), the pre-patellar bursa, the supra-patellar bursa and the articular cartilage in the knee joint itself. As you will gather, the knee joint is a very complex structure

IMO, your surgeon is under no obligation to respond to your line manager, under current circumstances, but he is obliged to respond to any correspondence the DWP may send to him about your injury and forthcoming operation.

As to dismissal on grounds of capability, I am of the opinion that it would be a case of "Act In Haste, Repent At Leisure" on your employer's part if they decided to proceed down this route at this point in time. My gut-feeling is that an Employment Tribunal could take a dim view of such reckless action on the part of the employer and hit them financially as a result. If your employers know an operation is due to take place, they should wait and see what it reveals, what remedial treatment is needed, e.g. further surgery, physiotherapy, and the prospects of your making a full recovery and estimated prognosis as to when you can return to work.

Certainly, your line manager needs to wind their neck in pretty damn quick. If they have pestered and/or made any sort of threats in order to force you to return to work against the advice of a consultant orthopaedic surgeon on at least two occasions, this may well amount to Harassment under the Protection from Harassment Act 1997. If you were forced to seek an injunction, this could be very expensive for your employers as they would be liable for court costs and any damages the court decided to inflict on them and, in addition, your employers would have to restrain your line manager, as failure to do so carries criminal sanctions.

I hope this helps.

[taken]

Re: Employment Law and am i being treated unfairly

Hi Bluebottle,

Many thanks for the feedback which is quite valuable. I've already mentioned that I won't know further until the operation on Wednesday, hence won't know the recovery until then and what needs to be done to aid recovery. I don't see the need for Occupation Health at present, again until I know the extent of the injury. What's raised my concern more was that fact I felt that I was singled out for the kind of attention compared to other colleagues who may have had similar injuries. I await now await outcome on Wednesday following exploratory.