dismissal

[spondy]

hi all

I have worked for a company for just over 6 years in 2009 i had an accident which resulted in me being diagnoised with spondylolisthesis,I have been back to work for nearly a year as i have been waiting for them to find me a suitable job,I received some vacancies through the post along with a letter inviting me to a meeting to update them on my medical condition,I have been told by my doctor returning to work on a production belt is not adviseable as this will aggrivate my condition,Occupational Health have said i will not be able to stand of sit for long periods, Work are now looking at Capability dismissal on ill health,i have in writing that i am covered under the disability discrimination act from occupational health but work are saying if i am unable to return on a production belt they cannot find a suitable job or solution for me, sorry to waffle but if i am dismissed can i claim its unfair dismissal as i feel they are not even bothering to help or find me a job i can do, i welcome any advice on this matter

 

thank you

[spondy]

hi again sorry i meant to put i have not been back to work for nearly a year

[SarEl]

If you have been off work for a year, and are entirely unable to do your normal job (with reaosnable adjustments if required) then a dismissal on capability grounds is a fair dismissal. In order to ensure that it is fair, the employer would have to show that there was no reasonable adjustment that could be made to your existing job (which appears to the the case, and agreed by both your own and the OH doctors), and that there was no other work available which you would be able to do. You say that you feel that they are not bothering to help or find you a job that you can do, but they have already told you that if you cannot return to your job they are unable to find an alternative one for you - so that must have entailed some degree of "looking" to see if they had any other jobs (you also mentioned that they had sent you details of some vacancies). But in the end, this is a two way street - they are not obligated to "make" a job for you, and so you need to be engaging with them to determine what you may be able to do and whether there are vacancies which would suit your restricted abilities. But in the end, if such vacancies do not exist, they do not exist, and a dismissal would be fair.

[spondy]

hi SarEl thank you for your reply and i understand they are unable to make a job or move someone from a job to accomodate me but working on the production belt wasnt my normal job,i was advised by their company doctor and they were advised by their company doctor to put me on light duties as my normal job entailed pulling heavy pallets and manual handling,at first they adhered to this but they ignored this advise after i was off in january of last year and put me on the production belt which aggrivated my condition and caused me to go off sick again hence me not returning to work for nearly a year

[SarEl]

Yes - but isn't the point that you can't do either of these jobs??? You couldn't do the heavy lifting etc., so your were given an alternative job, but then they were advised that you couldn't do sitting or standing so this job wasn't suitable either. It doesn't matter which is your normal job - the point is that you can't do either of them, and they have, it would appear, tried unsuccessfuly to find you a job that you can do. They have sent you details of vacancies, which I assume you either could not do, or did not want. So my advice still remains the same.They have made efforts, but I cannot say whether these would be enough effort (although it does sound that they may simply have no jobs that are suitable) - but the fact that you "feel" they haven't done enough isn't enough to make it unfair, because I can see their evidence trail of having tried to do something, and you will need more than a feeling to prove otherwise.

[spondy]

thank you for your advise

[SarEl]

I think that the point of the advice was - do you have anything more? What I have told you already explains things as they stand - if you can find other information then we may be able to make other suggestions

[mariefab]

For example, would working reduced hours help? If so, has this been considered?

 

Or, are there any suitable vacancies that you could undertake with training?

[papasmurf1cx]

"in 2009 i had an accident which resulted in me being diagnoised with spondylolisthesis"

 

 

Hi spondy

 

What were the circumstances of the accident? Was it a work related accident or an accident outside work? The point being if work (or others outside) were responsible for you unable to work then you may have a Personal Injury claim. This would have to be handled by a solicitor, have you got one?

[spondy]

hi mariefab i was offered reduced hours but i only on the production belt as they have told me they havent got a job for me anymore as a skilled operative,but was advised to see my doctor and get her opinion on this matter, my doctor did agree to reduced hours but not on the production belt as this will agravate my condition and i will be back to square one again and i have made good progress this far ( my condition is spondylolisthesis of L5 / S1)

[spondy]

"in 2009 i had an accident which resulted in me being diagnoised with spondylolisthesis"

 

 

Hi spondy

 

What were the circumstances of the accident? Was it a work related accident or an accident outside work? The point being if work (or others outside) were responsible for you unable to work then you may have a Personal Injury claim. This would have to be handled by a solicitor, have you got one?

 

 

 

hi papasmurf1cx my foot slipped off the metal step as i was walking down some metal steps inside the factory i have contacted a solicitor through an advert on the television but there isnt enough evidence and the solicitor is closing the case so i dnt think i have a reasonable successful personnel injury claim, i have been sent some more job vacancies through the post but i think it might be best if i just roll over and let them dismiss me on capability grounds as thats what they are going to do anyway

 

thanks for all your advise

[SarEl]

I don't think that is a particularly good idea. It may be fair to dismiss, but it does have to be done properly. What can you do? And are any of the jobs possible?

[spondy]

hi SarEi

 

the jobs they sent me were all managers jobs and shop work jobs there was only a couple of jobs on the list that i thought i may be able to do but was told that one of them had been filled and the other wasnt flexible enough for me ( hence my feeling that they wasnt doing enough to help find a suitable job) every vacancy they have sent me are 12 or 8 hour shifts the problem with that is i didnt work those hours i was only part time and even if i was to apply for any of the jobs i would be given priority but if i didnt meet up to the standards they were looking for they would give the job to someone else,i know that if they wanted to they could either make some exceptions but they told me they are only looking after my best interests and if i cannot work on the production belt then they are out of ideas

[SarEl]

Whether a dismissal is fair or not actually depends on them looking for, and being unable to find, the exceptions. THis isn't a job application situation - they should be looking for any suitable vacancy. Have they done an occupational health assessment or any other form of assessment to decide what you may be able to do?

[spondy]

Whether a dismissal is fair or not actually depends on them looking for, and being unable to find, the exceptions. THis isn't a job application situation - they should be looking for any suitable vacancy. Have they done an occupational health assessment or any other form of assessment to decide what you may be able to do?

 

they have done an occupational health assessment but i only attended the one in july i can send you the reports if you want to read them

[spondy]

The occupational health assessment was done regarding my skilled role in the factory and in july 2010 they recomended i could do sedentary duties on a temporary basis ensuring i have a workstation assessment but that never happened,The second occupational health assessment in august 2010that i didnt attend did say i would be vulnerable to further health related absence with my back if i had to return my skilled role and that sedentary duties if available would be feasible but i will remain vulnerable to further backache and it was to be a management decision

[meekmeek]

after working there for 6 years you probably got a good idea of all the departments of the company and know a few of the employees in each department

 

putting the vacencies they are offering aside and your skill level aside have you got a list of what jobs that you would be suitable to do healthwise.

 

what i am trying to say is accepting any job that does not cause health issues is better emotionally and financially then living on basic income support.

 

even if it is to be a secretary for the boss where you get the balance of sitting down and freedom to walk around when sitting becomes an issue.

 

so think about ALL of the job roles in the business that wont harm your health as its better to take a low pay unskilled job being a simple desk jocky then to sit at home still not using your skills.

 

show this list of acceptable jobs as it may be that they only searching for vacencies for a certain job role or pay bracket. but showing willingness to accept a lower skilled - pay bracket job may open more job possibilities the business had not thought of.

 

if not then i hope your health improves and you have luck with employment with another company in the future.

 

desk jocky [workstation] jobs are normally best as although you are sat down workers get the freedom to stand up and walk to the toilet - canteen - photocopier for a bit of exercise which would ease the pain and all the boss would need to do is offer a 5 minute per hour break as a reasonable adjustment which you may not require if you get to walk around the office for passing on memos, photocopying or just getting the boss a cup of coffee.

 

just make a list of suitable jobs based on health only forget pay forget skills as anything is better then income support.

once the list of possible jobs are listed then work out what hours you would need to do to get the bills paid and still not affect your health - but be ruthless DONT add on £1 to cover luxurys just work out the food rent-mortgage and utility costs.

 

this will then give you a better idea of where you stand with current employer or with future employers as to what the minimum requirements are acceptable to you.

 

some people when in a skilled job get used to the luxery lifestyle of their high pay but things will change if you become unemployed so seriously think about the minimum standards you would consider

 

hope this helps

Edited February 6, 2011 by meekmeek

[spondy]

hi meekmeek

 

thanks for your reply I have given them a list of jobs I think that I could do only to be told there isnt a vacancy or the job will be too stressful or the job isnt flexible I even told them i would be willing to make tea and coffee or take papers from one department to another but was met with well we carnt make a job up for you which i totally understand, i told them i would be willing to take a lower paid job and i know of all the different departments and asked but i still keep getting told that isnt possible the problem is they want me to go back to work on the production belt

 

thank you for your kind words also

[meekmeek]

spondy

atleast you also exhausted all avenues just to try and keep yourself employed. but i am afraid that giving you a redundancy notice is the only last solution. i would however still keep communications with the boss polite and hospitable as showing willingness to try anything and already knowing the business gives you better chances in future

 

what i mean to say is that maybe in a year or few months a job opertunity that does tick all the boxes may pop up and your boss would consider you first before someone fresh to the business as you already know how the business functions - you know the business plan and would end up saving the company both time and money by not requiring to train the "freshface" if they chose you instead. so keep things amicable and concentrate on your health and well being

 

good luck with whatever the future may bring you - just be sure the boss gives you a fair notice of employment termination and that the reason are due to health not being suitable for the business - as when health may improve they have no reason not to welcome you back with open arms if a position pops up