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Partner being forced to ill health retire after oh assessment.

DarkHorse

Hello,

My partner is a disabled employee who has an autoimmune disease covered under the equality act. She has had an occasional health assessment with a specialist nurse today who told her she will get dismissed due to her possibly not returning to work for 9 months (12 months off in total). She was also told it will be happening regardless if she accepts it or not.

i wanted to ask if here has been any changes to the equality act? Last time she had a health assessment she was told her employer cannot persist on ill health retirement due to her not wanting to be retired (she is 33 years old).

I am her registered carer, this situation is becoming incredibly hard for both of us. She is constantly depressed saying that she is a burden on everyone she knows. She loves to work but feels she can’t get another job due to her disability.

thank you for your time and advice. Hope to hear from someone soon.

Tom

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Albus_Alumni

Hi @DarkHorse and welcome to the community.

I'm sorry to hear your partners having a tough time with work and I'm sorry it's also affecting you. Have you spoken to anyone at ACAS? They would be the best port of call for anything work/legal related.

I'm just going to pop your post into a different category, so more people in the know will be able to see and hopefully offer some advice. I hope that's ok?

Bydand

DarkHorse said:

Hello,

My partner is a disabled employee who has an autoimmune disease covered under the equality act. She has had an occasional health assessment with a specialist nurse today who told her she will get dismissed due to her possibly not returning to work for 9 months (12 months off in total). She was also told it will be happening regardless if she accepts it or not.

i wanted to ask if here has been any changes to the equality act? Last time she had a health assessment she was told her employer cannot persist on ill health retirement due to her not wanting to be retired (she is 33 years old).

I am her registered carer, this situation is becoming incredibly hard for both of us. She is constantly depressed saying that she is a burden on everyone she knows. She loves to work but feels she can’t get another job due to her disability.

thank you for your time and advice. Hope to hear from someone soon.

Tom

Hi Tom, sorry to hear about what’s been going on and the toll it is obviously taking on you both.

It can be frustrating dealing with an employer or OH as you often feel that you have no control over anything and are just being swept away on a tide of policies and regulations.

Does your partner have access to a union…

I think the OH statement about dismissal is rather premature. Can I ask what type of employment your partner does, I know it is maybe personal but might give us an idea of what she is expected to do etc.

also, how long has she been sick for. Is she currently off sick?

And importantly how did the OH referral come about…was it through management or as part of a back to work plan….can I ask ,did your partner receive written notification of the OH referral?….it happens time and time again that an employee never recieves paperwork. As the employee you are entitled by law to see any referral made and this should include the reason for the referral and the questions your employer is asking OH to make a decision on. Any OH appointment should also start by being asked about whether you are aware of the reason for the referral.

My advice is to keep a record of all dates for meetings, OH telephone calls etc, also if there is any email trail, it would be beneficial to keep them. Any official referral paperwork or OH report should be kept also. It is always handy to have these should the situation worsen. Never think that your employer has your best interests at heart, always protect yourself by keeping records.

If you feel unhappy about how the OH appointment went then you are allowed to complain, but I would do this sooner rather than later. Explain specifically why you feel annoyed or angry. Make sure your HR dept are aware you are complying or wish to make a complaint, keep everything above board.

My understanding in relation to an employer looking to dismiss a disabled employee is that yes, they do have that right….BUT…they must follow a recorded procedure for doing so which will look at everything they can do to help you remain in employment, whether that is flexi hours, taking more breaks, providing appropriate adaptions to the office space…so desks, chairs etc.

If an employer has not exhausted all means of keeping you employed then they would likely face real difficulties in any employment tribunal.

However if they can prove that they have both been fair and exhaustive then I would guess they have every right to dismiss as it is a business first and foremost. Yes the disability act gives you some protection but at the end of the day you may be an employee who may not be able to carry out their role or job, just the same as a non disabled employee.

The last thing I would ask is this….does your partner feel able to work in any capacity? . Having been in the position of getting IHR the first step in realising that you may be really struggling is often the hardest. For me it took years of suffering being at work, reasonable adjustments etc before I had finally had enough and made the decision to apply for ill health…..once I had settled this with myself I felt content that I was doing the correct thing…..but not easy….i can fully understand how folks can feel like they are a burden and just annoying people….for what it’s worth this is normal thinking and the reality is likely that no one else is thinking the worst of you.

Not an expert and hopefully others will chime in
feel free to ask other questions

DarkHorse

Hello bydand,

thank you for your reply. I have just hit off the phone with ACAS which explain exactly what you have said so thank you for your professional advice!!

We both work for [Removed by Moderator - Work Name] in a sorting centre, they have made reasonable adjustments putting her on a ‘sit down’ duty sorting letters. She does still struggle on some days though.

she has been off for 3 months with uveitis and still cannot see very well. We have been told by her doctor that it was caused by her autoimmune disease but our manager has told her they are treating it as a separate illness which might not be covered by the equality act. I will have to make some inquiries!

She has had zero paperwork regarding her OH assessment, it’s all be organised by her manager. I have been in contact with the company (duradiamond healthcare) asking why we have had no paperwork. The specialist nurse said she won’t be able to work for 10 years and I have asked why that decision has been made too. I will update you when I get a response.

She has been asked to come for a meeting to discuss settlement in 2 days. She still cannot see very well and will find it extremely hard to attend. We have been in constant contact with our union CWU but I feel they always take the business’s side!

She feels fit to work and she wants to work. I completely understand that her health condition make it very hard to accommodate but we’d find it extremely unfair she is being dismissed after 3 months off. She just feels like taking IHR so she doesn’t have deal with this anymore. I have tried to persuade her but I want to be as supportive as possible.

ACAS have said we can refuse IHR and appeal any dismissal decision but again, she gets very distressed thinking about going through a tribunal.

We were also told she has 10 days to decide after the settlement meeting so we will have a good think. It’s possible IHR might be best for her in the long term.

again thank you for you advice! I will keep in touch with any updates!

Bydand

DarkHorse said:

Hello bydand,

thank you for your reply. I have just hit off the phone with ACAS which explain exactly what you have said so thank you for your professional advice!!

We both work for [Removed by Moderator - Work Name] in a sorting centre, they have made reasonable adjustments putting her on a ‘sit down’ duty sorting letters. She does still struggle on some days though.

she has been off for 3 months with uveitis and still cannot see very well. We have been told by her doctor that it was caused by her autoimmune disease but our manager has told her they are treating it as a separate illness which might not be covered by the equality act. I will have to make some inquiries!

She has had zero paperwork regarding her OH assessment, it’s all be organised by her manager. I have been in contact with the company (duradiamond healthcare) asking why we have had no paperwork. The specialist nurse said she won’t be able to work for 10 years and I have asked why that decision has been made too. I will update you when I get a response.

She has been asked to come for a meeting to discuss settlement in 2 days. She still cannot see very well and will find it extremely hard to attend. We have been in constant contact with our union CWU but I feel they always take the business’s side!

She feels fit to work and she wants to work. I completely understand that her health condition make it very hard to accommodate but we’d find it extremely unfair she is being dismissed after 3 months off. She just feels like taking IHR so she doesn’t have deal with this anymore. I have tried to persuade her but I want to be as supportive as possible.

ACAS have said we can refuse IHR and appeal any dismissal decision but again, she gets very distressed thinking about going through a tribunal.

We were also told she has 10 days to decide after the settlement meeting so we will have a good think. It’s possible IHR might be best for her in the long term.

again thank you for you advice! I will keep in touch with any updates!

You’re welcome, I’m glad at least some of my advice was useful. I am not a professional at all, just someone who went through the IHR process and previously was ill for years beforehand so took it upon myself to learn the policies inside out as I was often given the run around and conflicting information….at times I physically handed in a highlighted policy to my manager or HR…you have to take control as no one else will.

i still think they are being a bit premature. I doubt that you’re partner only being off for 3 months constitutes grounds for dismissal and I doubt an employment tribunal would either….but any employer would naturally look at a timescale when the employee was likely to be considered fit again.

Has your partner had any yearly appraisals etc, if they have ,do they highlight concerns or being unfit for her role?. Does it mention being unsafe.

Ref unions, my dealings with them has been fairly poor on the whole. Local union reps especially can feel like they are often between a rock and a hard place and you need a strong character to mediate…people often forget though that they are also there to represent the employer ,in that the employee is being fair and reasonable…..my advice would be to ask representation from the regional rep or higher…..whatever happens I would not want to go into the meeting with no representation….i would also state to them that you wish too record the meeting….if no rep available and you have asked for one to be present then the date of the meeting should be postponed….if you are in a union and pay a subscription then you are entitled to representation….any rep worth their salt would know this and be telling the employer….if they push ahead anyway make sure that you record everything and make sure to highlight that you are there under duress and give your reasons..ie you have asked for union rep to be present….it may be possible to speak to citizens advice etc and see if they would have or know of someone who could sit in and take notes from a disability side of things….an employer would not like that at all. At the conclusion of any meeting send an email thanking people for attending, confirming what happened in the meeting and the main points. This would stand as evidence if required.

if it were me, I would start the ball rolling asap with a formal grievance with ref to management referring partner to OH and a complete lack of paperwork at any stage. I would be asking management/HR to provide all signed copies of referrals to OH in time for the meeting and to specifically clarify that your partner received them and also signed to say they were happy for the referral to go ahead.If your partner did not receive referral paperwork and was unaware of the questions the employer wanted OH to ask and has not signed anything to say they agree to a referral being made then I would say that the OH referral would become void and the employer in breach of policy….if you can get a copy of the absence management policy which will detail exactly how the employer should act and the various stages….it is your right to have access to any company policy.

when you mention a meeting to discuss settlement, can you be more specific, is you’re employer looking at starting the IHR process or looking at a redundancy or capability package of some sort or straight dismissal….Your employer is not allowed to suggest ill health retirement as a way to get you to leave the company. This could be disability discrimination because ill health retirement is entirely your choice and they are not allowed to force the issue.

with regards your partner just wanting to take IHR, I can only say that although I can understand her thinking the reality is far more complex and IHR is not guaranteed , in fact it is very difficult to get as there are all sorts of criteria you have too meet, being ill or having a condition is not enough on its own. Your own pension scheme policy should explain fully what they would look for and the descriptors they judge against.

The onus is on you to evidence that the condition and associated symptoms meet the criteria…..it is also highly unlikely that the schemes medical Officer would support IHR if there is no real long term trail of illness, sick periods etc. usually an employee is ill for years before making the decision to go down the IHR route.

It can often be better to try and get some sort of redundancy / capability package, especially if someone has only a few years employment.

Sorry I can’t be more help. It must be a real trial for you both.

any questions ask away, and keep us in the loop of how you are getting on.

Bydand

Darkhorse,
I forgot to say , advise your partner not too just resign…if you do then your options for unfair dismissal or anything else etc pretty much go to zero as it will be accepted that you asked to leave.
i am fairly certain that resigning would also limit any benefit entitlement you might have.
you also cannot naturally apply for IHR retrospectively.

play the long game, keep records, record grievances and let them decide on a course of action…..as an employer they need to be squeaky clean and open in their dealings with you….if you can prove they haven’t been then good luck to them at a tribunal.

Hannah_Alumni

Hello @DarkHorse

I am so glad to see you are getting support from Bydand

I just wanted to comment. I removed the name of the work company just to help keep you safe as this is a public forum.

DarkHorse

Good evening bydand,

We have receive a transcript of the OH assessment. We were a bit confused by a section under ‘equality act’. The clinician has written that ‘disability discrimination act would be likely to apply. This is, however, a legal rather than a medical determination.’

i take it to mean we should speak to a legal specialist but the clinician stated that if she didn’t accept IHR she would be dismissed anyway.

Again, thank you for your advice! This has been so helpful to us. I’m glad there are people like you around!

Tom

Bydand

DarkHorse said:

Good evening bydand,

We have receive a transcript of the OH assessment. We were a bit confused by a section under ‘equality act’. The clinician has written that ‘disability discrimination act would be likely to apply. This is, however, a legal rather than a medical determination.’

i take it to mean we should speak to a legal specialist but the clinician stated that if she didn’t accept IHR she would be dismissed anyway.

Again, thank you for your advice! This has been so helpful to us. I’m glad there are people like you around!

Tom

Hi Tom, apologies but I have been away for a few days on a well needed break, but thought I would check in when I got a good internet signal ( not guaranteed in Scottish Cairngorms).

Well at least you have received a transcript of the assessment, that’s a start.

again, no expert but having had several Oh appointments they have to always include whether the illness or condition is likely to fall under the disability umbrella so to speak…..However even if they say that would be likely that doesn’t mean the employee isn’t fit for employment, it is just a recognition that that individual may have an illness which may or may not effect them.

ref IHR and tying it into an illness, an employer can ask the question of OH about whether the condition could meet IHR criteria, and yes OH when faced with this question may say yes it likely would meet the criteria…..that is as far as OH can go, they cannot threaten or push IHR on you….your employer also cannot push IHR onto you as a way of getting you to retire and leave the company as the decision is solely the preserve of the employee….however if the employer had concerns it would be expected that a meeting would be adjourned to discuss and work through all scenarios, from both sides….this should always be done in a professional way, not on and hoc basis.

I still think OH is being premature at the 3 month mark, and maintain a tribunal would likely also think so…..6 month stage questions would likely be asked, 12 month stage then definitely……that’s why there is an absence manage policy which has the various stages and statutory sick pay.

Have you had the scheduled meeting, and if so how did it go?

Your union, whether you think they have been helpful or not should have legal services that you should be able to access as part of your union fees.

keep me in the loop

DarkHorse

Thank you for your support MV. It’s truly humbling so many people want yo help!

Her manager has book a meeting today to discuss the ‘lump sum’ she has rescheduled the meeting to Monday as she is not well at all.

Her manager seemed very reluctant to reschedule saying, ‘it’s an important meeting, can’t your mum bring you’? I may be exaggerating but I do not feel they are taking her illness seriously.

reading though the transcript, it suggests my partner would not be able to return to work within the seeable future (9 months). I find it hard to understand how a clinician can make that suggestion over the phone.

I have a meeting with my manager tomorrow (I work with my partner) with our union rep. I will be discussing her options with them and if they think LHR is the right choice and if she refuses if there is a possibility of dismissal or discrimination!

I have spoken to ACAS but if I feel she is being pressured into LHR I will try to start a grievance process with them, my MP has suggested the same.

Not sure if you can answer this but can you start a grievance within the company rather than with ACAS? I did start a grievance about disabled parking at our workplace (staff with no blue badges were parking in disabled bays).

My experience wasn’t very good. Leaflets were placed on windscreens saying not to park there but after two weeks no one was challenged even after I sent multiple pictures to our head manager. There’s still no disabled parking most days.

I can’t thank everyone enough for your support and advice. I feel we are making progress and will let you know how our meetings go!

Tom