Off Sick + Redundancy + Disability

[darkcyde]

Hi

 

I would be grateful for any advice on my current situation.

 

I have been with my current employer since beginning of May 2010, and have been off sick since end of October 2011 claiming SSP (my employer doesn't pay sick pay). I have been sending him regular Fit Notes from my GP with updates on the situation. In addition, I have twin sons born early November 2011. My wife is currently on Maternity Leave and in receipt of Statutory Maternity Pay only.

 

My illness (Fibromyalgia, Chronic Pain Syndrome, Chronic Fatigue Syndrome, IBS, migranes, etc) and the medication my Specialist is trying me on means I cannot drive or work at the moment and for the foreseeable future.

 

I received a letter from my employer this morning stating that due to downturn in the business he has to make me redundant. This is fair enough, except its very convienient for him as in May I would need retraining in my specialist qualification (cost to him of about £1500) and I also become eligable for Statutory Redundancy Pay. The letter has been carefully worded to state that the other engineer (small firm, 2 employees and 1 aprentice) is the most flexible employee so that leaves me as the one to go. The other engineer is as qualified as me, but has less experience (less than 1 year fully qualified).

 

We are currently in receipt of Housing Benefit and Council Tax Benefit due to low income.

 

My questions are :

 

1 - Can he do this?

 

2 - Am I entitled to holiday pay up till my last official working day?

 

3 - Am I entitled to pay for my notice period (1 week)? Will this be SSP or salary rate?

 

4 - Where do I go from here - I currently cannot work, so Jobseekers seems a little out of place so I assume ESA?

 

5 - I was sick over bank holidays - does he owe me holiday days for those as I only received SSP for them?

 

Sorry for the long post but my mind is running away with me at the moment, as I'm not sure where to turn now.

 

Thanks in advance!

 

L

[honeybee13]

Hello and welcome to CAG. I expect the guys will be along when they can over the course of the day.

 

There's a forum 'sticky' on holidays and sick pay that you might be interested in. Here's a link.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?251897-Sick-pay-amp-all-ancillary-beneifits-DO-accrue-during-sickness

 

My best, HB

[becky2585]

Hi there

 

Sorry to hear of this horrible situation!

 

Firstly, was the notification that you were actually being made redundant the first that you heard that your job was potentially at risk, or was there a procedure that your employer followed? They should have pooled you with the other employee and scored you on various criteria - not just "flexibility"!

 

So:

 

1) No, he cannot just terminate your employment in this way - you most likely have an unfair dismissal claim as a result.

2) You are entitled to holiday pay for the year to the point where your employment terminates, therefore you should be entitled to a payment in lieu of accrued but untaken holiday pay.

3) Yes you are entitled to your notice period - although there is a problem here as it may be on SSP only.

4) I am not sure on.

5) If you were only paid SSP then your employer should add the bank holidays to the calculation of holiday entitlement outstanding and pay you in lieu.

 

I would strongly recommend you see a solicitor - you do have quite a good claim, from the facts given.

 

If no procedure was followed then you almost certainly have grounds for an unfair dismissal claim and potentially disability discrimination too as Fybromyalgia almost certainly is a disability for the purpose of the Equality Act and you may be less "flexible" as a direct result of your illness.

[scottymarie]

Hi, Try ACAS, (Advisory, Conciliation and Arbitration Service) they deal with Employer Issues, type ACAS on Yahoo or Google, to get their website, or see the link below, they also have a helpline phone number.

 

The Acas Helpline is the place to go for both employees and employers who are involved in an employment dispute or are seeking information on employment rights and rules. The Helpline provides clear, confidential, independent and impartial advice to assist the caller in resolving issues in the workplace.

 

Call the Helpline on 08457 47 47 47

Monday-Friday, 8am-8pm and Saturday, 9am-1pm

 

Take Care x

[honeybee13]

If you're going to seek legal advice, do you have legal protection cover on your home insurance?

 

HB

[darkcyde]

Hi - thanks for al lthe prompt replies....its is very much appriciated!

 

My employer has offered me a 14 day consultation period "should you wish to arrange a metting with me to discuss the situation further". Unfortunately, he is an extremely arrogant and intimidating person who shouts and swears at employees on a regular basis. For example, he has reduced a previous apprentice to tears to the point he was throwing up every morning before coming into the office, and when another employee several years ago lost his driving licence he went to court to 'represent' him and ended up swearing at the judge before storming out of the court!. Needless to say I'm apprehensive about meeting with him as stressful situations can exacerbate my illness and I could end up in severe pain as a result - my Specialist also advised avoiding stressful situations.

 

Regarding unfair dismissal, I have other situations during my employment that I can raise with this. The examples above I would consider as bullying & harrasment and he also makes deductions from our pay packets (for example, he sends you on a job where you need a special tool, you buy the tool from the merchants on his account, he then deducts cost of tool from your next weekly payslip). I have documented these deducations and it equates to about £350 over the period of employment. If he is ever questioned he feigns memory loss about it and promises to look it all up and give you the reasons but never comes up with the goods!

 

I also know that a previous employee was off on sick for about 6 months and he wasn't paid holiday during that time.

 

No household insurance with legal I'm afraid. Would a employment dispute cost me any money to initiate? Obviously cash is very short at the moment with 2 hungry twins to feed!

 

I'm going to CAB tomorrow to get some advice - I've never been to them before so wasn't sure how knowledgable they are so wanted to go armed with a little myself first.

[honeybee13]

Hello again.

 

CAB should have contacts with specialist lawyers who should give you a half hour initial interview without charging. If you can't afford fees, then you would need a NWNF firm, but maybe it won't come to that depending on what the guys here think.

 

HB

[darkcyde]

Where do I stand if I refuse to meet with him personally during the consultatation and insist of all correspondence via letter? I could end up with a situation whereby he says something to my face that he later denies, or he intimidates me and I give in to him.

 

I'm drafting him a letter where I disagree with his selection of employee to retain on the grounds that I'm more qualified and saying that this employee is more 'flexible' makes me feel that me being a new parent has influenced his decision in as much as I might need time off for childcare (for which he has verbally berated a previous employee for when he said he was going to be half hour late in the morning as his babysitter was ill).

 

I feel that stating my disagreement at this point is important. Going back over my records, he has also miscalculated my pro-rata'd holiday for 2010.....he calculated it as...

 

20 days / 12 months = 1.5 days per month * 8 months worked = 12 days entitlement

 

it actually is...

 

20 days / 12 months = 1.6 days per months * 8 months worked = 13 days entitlement

 

So he rounded down to the nearest .5 and worked up from there, but that takes 2 days away over the 12 months!!

 

And he has deducted me a holiday day for a day I had off unpaid, so he owes me 2 days from 2010. I'm not sure how much more I'm going to find if I scrutinise everything!

 

Basically, with all the holiday he owes me plus the deductions from my pay, he owes me nearly £2000 minus taxes. If he agrees to pay me this, then I'm happy to walk away given that I'm probably not going to be able to work again anyway.

 

So I just need to state my disagreement, ask for what he owes me and see where it goes from there.

[papasmurf1cx]

I would additionally write to him asking him to define what he actually means by the other engineer being 'more flexible' It seems to allude to your illness / sickness without actually stating it in exact terms. Just wondering if there is some element of discrimination going on here too.

[mariefab]

It's a good a idea to send him a letter.

You could write that you would prefer to handle the consultation in writing so as to have an accurate record of the process. (More tactful than saying that he'd bluster and intimidate then later conveniently 'forget' what he said.)

 

Would you say (and would your doctor agree) that your medical conditions have a substantial, long term effect on your ability to do everyday things?

If so, then you could include in the letter that you feel that his knowledge of your disabilty is one of the reasons for your dismissal.

 

Do you think that your boss is likely to pay you what you're entitled to without an Employment Tribunal claim?

 

If so, then you need to be aware that he can safely refuse to repay the deductions that he made for tools and the unpaid holiday from 2010 (because it's too late to claim them).

You would probably be able to recover a weeks notice pay and any accrued untaken holiday entitlement from 2011 to the end of your notice period.

If you let us know how many days a week you worked and what your contract (if you have one) says about holiday entitlement we could help you work out how much you would be likely to get.

 

If you think that you won't get anything from him without a fight; it's worth exploring what other claims you might have because if it turns out that you have to be put through the inconvenience of making a Tribunal claim you might as well add everything you can to the mix.