Long term sick but boss won't acknowledge Occupational Health report

[NevilleB]

Hi,
I'm looking for some advice and help for my husband...He's been on long term sick for work related stress and depression since Sept last year. The company he works for went into administration around this time last year, but one of the directors managed to find an investor and took over the company, since this time things became increasingly hard for my husband at work, he was pushed and pushed by the director to get work finished but the lack of raw materials he need to work with weren't there making it impossible to get his work done. This director took the approach of just shouting and swearing at his workforce which resulted in many (at least half) of them walking out and not returning. My husband has worked for this company for close to 25 years and has never had any sickness leave before, other than an operation in 2008 and the odd couple of days here and there for colds. When my husband first went sick in Sept we went to speak to his boss to see if there was anything that could be sorted out so that he could return to work, he response was that if he couldn't handle the pressure he could return to work and sweep the floors!!! This was not the response we were looking for as you can imagine...Anyway he said my husband would need to resign if he was going to stay on long term sick so he could advertise the the job to someone else, this is where I stepped in and told the boss that he didn't have to resign and that he had to keep his job open for him for as long as he was on sick leave. We got an appointment to see a doctor who he had sought in Feb this year (in a phone conversation between my husband and his boss about this appointment he led my husband to believe that this doctor was going to over rule his own doctor and that he'd have to resign or return to work). His appointment with the doctor his boss sent him to see, went well in as much as he could clearly see that my husband was significantly depressed and that this was brought on by the atmosphere he worked in at present, the doctor advised in his report that my husband should not return to work in his current state and that it might be an idea to put a redundancy package into place for him meaning both parties can move on. I have contacted his boss on about three occasions to see when he is going to get back to us regarding the doctors report and just this morning received an email from his 'general manager' stating and I quote '........ has read and understood the doctors report and has no comment to make'. Sorry for the all of the above information to get to this point but I though if we were to get the best advise it would help to give you the background. The question we are wanting to know is can he just have 'no comment'? What are we to do now? (his SSP has ended now and we are waiting for his boss to send out Form SSP1, (which may I add I had to tell them about) to continue his sick pay with the benefits agency, so does that mean we need have no other contact with his employer now?).

[Eloise01]

Re: Long term sick but boss won't acknowledge Occupational Health report

Ah. A case of nobody understands the law on sickness at all!

Right, from the top:

• You are quite correct that your husband does not have to resign, and until either he resigns or he is dismissed then he remains in employment
• You are quite incorrect that the employer must keep the job available for you husband for as long as he is on sick leave - he can be dismissed for sick leave of this length; a medical opinion to this effect is generally required stating that he cannot or cannot soon return to work and no adjustements can be made, and the employer now appears to have that that medical opinion
• This is definitely not a redundancy (I do wish doctors would stick to medicine and not dip into employment law - they often cause a lot of problems doing this). The doctor has neither the authority nor the right to suggest that someone should be made redundant - and since there is no indication that the post is redundant this is not a redundancy anyway. People are not made redundant, posts are.
• Provided the employer follows a fair procedure in law (which is not hard to do) then it is relatively easy to dismiss him on capability grounds. This would be far cheaper than anything else anyway and it does not sound to me like the employer is inclined to spend money that they do not have to.
• There is nothing you can do now. The doctors report is informational and for the employer - the employer is in no way obliged to act or comment on it.
• Until such time as he is no longer an employee he remains in employment regardless of who is paying his sick pay. He is still entitled to accrue / claim his statutory leave entitlement. He must also continue to comply with all legal and contractual terms - if he wishes to go away on holiday he must book that as leave (as he should be paid for it but he has to ask to be paid), sick or not; he must continue to provide fit notes and maintain contact as required by the employer, and be available to meet with the employer or others in connection with his employment etc. He is still entirely bound as a normal employee until he isn't one - and he can still be dismissed for failing to follow law or the policy.

The ball is now in the employers court, and they actually can just leave it there. Aside from having to pay for annual leave, they can basically keep him on the books for ever and never dismiss. Or they can follow a capability process and move to dismiss him. It really is down to them to determine the next move, if there is to be one at all. Many small employers have just left people sitting on sick leave before now, because it is often safest and it is often more inconvenient for employees to still be employed than it is for the employer, who has generally "moved on" by this time anyway.