Work refusing to let me rejoin after certified sick leave

CruelCoin

FitEmployeeUnfitEmployer wrote: »

- Doctors and social welfare now state I am fit to return but will require some accommodation, need to be non-customer facing for a while.
- Employer stating that they can't have me back as they can't accommodate and are terminating my permanent contract paying notice.

You are either fit to do the job you are contracted to do, or you are not.

"Kinda fit for something else" isn't fit.

The employer could make a perfectly reasonable claim that if you are unfit to face customers, then you're unfit to handle stress, and what job doesn't have a bit of that?

CruelCoin

FitEmployeeUnfitEmployer wrote: »

FYI - An employee is presumed sick unless and until they return to work, even if only for a day. In this case the employer didn't give the employee a chance to return. So in their eyes said employee isn't "fit for work"... So termination is illegal. It's pretty simple. The doctor can state the patient is fit, if employers have doubts they can subject an employee to a medical exam.

Fit for work maybe, but not fit for your work.

Frankly, a doctor doesn't have any place in deciding what kind of work the employer should give you, only if you can do your job or not. Anything beyond that is improper speculation on their part.
Guesswork doesn't hold up well in court.

FitEmployeeUnfitEmployer

FitEmployeeUnfitEmployer wrote: »

need to be non-customer facing for a while

Employer stating that they can't have me back as they can't accommodate and are terminating my permanent contract paying notice.

The role normally wasn't heavy customer facing, just known as a "customer facing role". They have advertised a lot of roles which could fit my present condition.

OP perhaps you could clarify. Is the case:

A. You want to go back to your old job (which wasn't really "heavy customer facing" anyway) and just drop the customer facing part for a while?

Or

B. You accept that you can't do your old job but there are other suitable roles within the company that you can do and they are even advertising for these roles?

calfmuscle

I find the black and white attitude of some posters really outdated and not in keeping with modern employment.

It's common for a person to return to work after illness with adapted roles and or hours. Employers are expected to make reasonable adaptations and accommodations.

2 basic examples are a waitress with a broken leg being given some admin duties while in cast.

Another is a person special needs assistant returning to work after cancer being allowed to return on a part time basis initially.

Op I hope you have success challenging your employer and that they offer you support in getting back to work. It's for the best of all society if we help people to work rather then ostracise them.

Dav010

calfmuscle wrote: »

I find the black and white attitude of some posters really outdated and not in keeping with modern employment.

It's common for a person to return to work after illness with adapted roles and or hours. Employers are expected to make reasonable adaptations and accommodations.

2 basic examples are a waitress with a broken leg being given some admin duties while in cast.

Another is a person special needs assistant returning to work after cancer being allowed to return on a part time basis initially.

Op I hope you have success challenging your employer and that they offer you support in getting back to work. It's for the best of all society if we help people to work rather then ostracise them.

Interesting examples.

Are you saying the restaurant has to create an admin job for the waitress where one does not exist, nor is required?, and a part time post has to be created where a full time employee is necessary?

My understanding is that the employer must TRY to accommodate the employee who is unable to carry out their duties fully, your examples seem more black and white than the legislation may require.

calfmuscle

Dav010 wrote: »

Interesting examples.

Are you saying the restaurant has to create an admin job for the waitress where one does not exist, nor is required?, and a part time post has to be created where a full time employee is necessary?

My understanding is that the employer must TRY to accommodate the employee who is unable to carry out their duties fully, your examples seem more black and white than the legislation may require.

No I'm not saying a restaurant has to create an admin job for a waitress. However both my examples are from real life. Nice examples were employers made reasonable accommodations to support their employees in the short term. It wouldn't appear too difficult for a company with over 2000 roles to find a non face to face job for an employee in the short term.

Do you think it's unfair for the employee to be accommodated?

Dav010

calfmuscle wrote: »

No I'm not saying a restaurant has to create an admin job for a waitress. However both my examples are from real life. Nice examples were employers made reasonable accommodations to support their employees in the short term. It wouldn't appear too difficult for a company with over 2000 roles to find a non face to face job for an employee in the short term.

Do you think it's unfair for the employee to be accommodated?

With all due respect, we do not know what the op’s employer’s situation is, particularly at this time. They may have been in this situation before and been unable to accommodate the employee, they may have tried, then concluded there were no positions available for the op.

Though your examples may be “nice”, they may not be applicable to the op’s situation.

I think is very fair for the op to be accommodated, I think the employer has a responsibility to try to accommodate him/her, but I also think the accommodation has limits, if they are surpassed, unfortunately the op has little option but to either accept it, or explore taking a case for unfair dismissal.

LegacyUser

OP. While I do feel your predicament and wish you well, I think the thread title is misleading and should be altered to what you've outlined in the thread.

_Brian

calfmuscle wrote: »

I find the black and white attitude of some posters really outdated and not in keeping with modern employment.

It's common for a person to return to work after illness with adapted roles and or hours. Employers are expected to make reasonable adaptations and accommodations.

2 basic examples are a waitress with a broken leg being given some admin duties while in cast.

Another is a person special needs assistant returning to work after cancer being allowed to return on a part time basis initially.

Op I hope you have success challenging your employer and that they offer you support in getting back to work. It's for the best of all society if we help people to work rather then ostracise them.

That sort of facilitation does happen but it’s not an immediate entitlement and often employees who are messers will find there is no suitable alternative available.

At the end of the day we’re only getting one side of the story here. My experience as a manager is that making decisions based on a half story isn’t wise.

It remains a fact that OP can have their employment terminated legally if they are no longer fit to perform the job they were contracted to do.

For all we know OP is expecting a much lower paid job with lower responsibility for their original pay. I’ve seen that happen before.

Augme

_Brian wrote: »

It remains a fact that OP can have their employment terminated legally if they are no longer fit to perform the job they were contracted to do.

Can you outline how it is legal? And what's are you defining as "fit"? Are you referring to competency or physically/mentally?

Dav010

Augme wrote: »

Can you outline how it is legal? And what's are you defining as "fit"? Are you referring to competency or physically/mentally?

The op has not indicated whether his/her illness is physical or mental, merely that he/she is unable (fit) to return to previous duties. And while an employer has a responsibility to try to accommodate him/her, this may not be possible. All that the op can do now is take a case for unfair dismissal and let the WRC decide if the termination was legal. We certainly don’t have enough information to give an opinion on the merits of the op’s case, though we do know that the op was hired to a customer facing position, but is unable to return to this.

LegacyUser

I've responded a number of times but none getting approved.

It's a bit complicated but thankfully I got the right guidance and the employer is "engaging"...

Maybe they felt I wouldn't question their decision... The turn around was pretty quick...

_Brian

Augme wrote: »

Can you outline how it is legal? And what's are you defining as "fit"? Are you referring to competency or physically/mentally?

Legal as in it’s not illegal
Un fit as in unfit in any way.

Let’s break it down simple.
If your employed as a block layer. You have an accident amd are no longer able to handle blocks ever again. Your employer can let you go, legally as you are no longer able to perform the duties you were hired to perform. The employer has no obligation to think up new roles to keep you on, it’s unfortunate but that’s the way it happens.

Augme

_Brian wrote: »

Legal as in it’s not illegal
Un fit as in unfit in any way.

Let’s break it down simple.
If your employed as a block layer. You have an accident amd are no longer able to handle blocks ever again. Your employer can let you go, legally as you are no longer able to perform the duties you were hired to perform. The employer has no obligation to think up new roles to keep you on, it’s unfortunate but that’s the way it happens.

Your employer cant just let you go without first assessing whether it's possible to provide reasonable accommodations first. A recent ruling has said that reasonable accommodations can include changing an employees core duties.

The employer is obligated to go through a process first, and then be able to stand by that decision after the process if the decision is to terminate someone's employment.

It's simply a case that an employer can say goodbye to someone after an accident no matter what anymore.

1hnr79jr65

Augme wrote: »

A recent ruling has said that reasonable accommodations can include changing an employees core duties.

Can you post source data on this as I would be interested to read about this case.

mrslancaster

Sour Lemonz wrote: »

Can you post source data on this as I would be interested to read about this case.

this..
https://employmentrightsireland.com/no-exemption-for-the-irish-prison-service-to-make-reasonable-accommodation-for-prison-officer-with-back-problems/

sura28

FitEmployeeUnfitEmployer wrote: »

Well, I won't say much as I'm been pre-warned it will be considered trolling...

So, I posted on boards first. It took a while to get responses, in the meantime spoke to GP, directed to welfare officer.

FYI, you can be fit for work but not be able to do certain things... It's in the welfare form. So GP says fit but, employer says no here is your P45... That was the wrong thing to do.

I'm not looking for payout, just return work. So option for employer is to get their medical examination conducted and accommodate or state why they can't...

It isn't as complicated as it seems... We just had too many responses taking this is multiple directions and a lot of hearsay...

Employers will try to take the easy way out, employees need to understand their rights.

I posted here to ask if I had any rights. Employees do, but a few posters think it's unfair on the employer... Unfair and legal are two different things... Doing the legal thing might actually be unfair for a company as far as their profits margin goes, but that's why there are laws to protect employees...

It's ironic that people complain if someone stays on welfare but also complain if they try to get back to work needing accommodation... So employees are either sponging the state or the employer...

I never had a sense of "entitlement" I want to work but need time to adjust that's all...

FYI - I'm a fully qualified professional trained for 4.5 years and two level 9s, 10+ years qualified experience... So I wasn't talking about working in McDonalds and not being able to manage the till...

Hi

I think the best is to consult with an employment solicitor. Employer should send you for a medical to see if you are fit to return to work, and if so in what basis. Reasonable accommodation is expected. If they are letting you go, they have to prove that they have followed a fair procedure and the burden is on them to prove this.

A company that size and with your years of experience should have a suitable role for you or be able to accommodate you for the time being.

I would get on to your GP to write a note explaining this or recommending for a phased return to your current role, also request to be sent to the company doctor. They cannot let you go so easily without engaging with you and following a fair procedure. If the reason for your absence is Mental Health related, under the Equality Acts its consider a disability and they could see themselves facing an unfair dismissal case based on this.

I would get advice from a solicitor and send a strong letter requesting to be reinstated and in a nice way letting them know that you would take things further. Also, ask for a Data Subject Access under the GDPR. They will have to release all the data they are processing about you, including any internal communication in relation to you and your employment. This will show them you are being serious and they will want to engage with you to try to avoid this.

If they offer you a nice package it may not be worth for the time this will take (if you start a WRC complaint) but if you want reinstatement they may reconsider it in order to avoid all the hassle and the extra costs. These kind of companies are known for getting rid of people this way and it's up to you if you decide you want to fight it or not, but get legal advice first to see if it's worth it (your time or mental health).

I would think if they don't want you it's time to move on since the work environment may not be the best given the circumstances, but I will negotiate a better package.

If you make a complaint to the WRC, the burden of prove will fall on the employer, so they'll have to prove that there is not suitable role for you in the organisation, why they couldn't accommodate you, and also that a fair procedure has been followed.

Before contacting HR get proper legal advice so you know where you stand. Also look into the Unfair dismissals Act 2015 and the Employment Equality acts.

Best of luck

PS- I work in HR

_Brian

Augme wrote: »

Your employer cant just let you go without first assessing whether it's possible to provide reasonable accommodations first. A recent ruling has said that reasonable accommodations can include changing an employees core duties.

The employer is obligated to go through a process first, and then be able to stand by that decision after the process if the decision is to terminate someone's employment.

It's simply a case that an employer can say goodbye to someone after an accident no matter what anymore.

Read my posts from earlier and I said this exactly.
But.
As I said fits deemed that no suitable alternative is deemed available the employee can be legally terminated.

Dav010

Quote from the High Court ruling linked:

“Whilst the employer does not have to create a job for an employee, and they do not have to provide measures that are unduly burdensome, they do need to look at the operational capacity of the organisation and see if they can retain a role which did not involve .......”

So, if the op goes to WRC, the employer has to show that an effort was made, and that no position was available for the op, they do not however have to make a new position for the op.

_Brian

Dav010 wrote: »

Quote from the High Court ruling linked:

“Whilst the employer does not have to create a job for an employee, and they do not have to provide measures that are unduly burdensome, they do need to look at the operational capacity of the organisation and see if they can retain a role which did not involve .......”

So, if the op goes to WRC, the employer has to show that an effort was made, and that no position was available for the op, they do not however have to make a new position for the op.

Absolutely, think about it, it would be madness if they “had to”

How accommodating they are and what’s deemed “suitable alternative” often comes down to the employee, if you’ve been a ball of trouble you’ll find that less effort will be made looking for an alternative position.

Masala

As matter of interest ... is OP willing to drop wages and terms and enter a new contract of employment if company can accommodate?? Just wondering

FitOrUnfit

OP here. Just realised that most of my post since the last 2 weeks didn't get approved and posted!

Registered just to update.

As stated earlier, the laws exist to protect both employees and employers... We live in 21st Century Ireland.

It was a clear case of the employer trying to pull a fast one hoping I don't react. When I did, the turn around was really quick. Says a lot?

The last few posters have included a lot of evidence on how and why I am legally covered...

Is it that difficult for people to refrain from posting unless that really know the laws etc? All they are doing is discouraging others from reacting to being shafted.

Maybe I'll try to respond to most posts as I had done but they weren't posted.

But everyone should exercise their rights. Nothing to lose, everything to gain. Hard work and the will to work will never go unnoticed. Wanting to work is not an entitlement but wanting to stay on welfare is...

This isn't a case of slipping in the aisles and receiving payouts... This is a case of a loyal employee working for years who developed a medical condition on the job, hoping to return to actual work, not paper pushing or just collecting a salary, after recuperating but on medical advice have requested some accommodation... But well, what's the point of explaining to people who don't want to understand?

bucketybuck

FitOrUnfit wrote: »

But well, what's the point of explaining to people who don't want to understand?

There have been some valid questions asked and you haven't answered any of them. That alone says a lot.

Feets

Alot of posts here but it sounds like you r not welcome back...is there another company you would like to work for. If they dont value you, they won't start now. It would have to be better for your confidence? Just a thought

Dav010

FitOrUnfit wrote: »

. But well, what's the point of explaining to people who don't want to understand?

Ops don’t always get the advice and support they are hoping for, but one thing is certain, rarely do people have a “water tight case” when it comes to employment law, hence why adjudications at the WRC occasionally go against the employee.

The law is there to protect both sides, not exclusively the party that feels wronged. It is a fact that employers do not have to create a new position for the employee unable to return to full duties, the Judge in the High Court case linked earlier actually stated that. So your case would have to stand on its own merits, were you unable to return to your job? Did the employer make a effort to accommodate you? And if so, was there another position available?. That is for the WRC to consider and adjudicate on, but there is no guarantee that you will prevail, that is the law, whether you yourself understand that is now open to debate.

Best thing you can do is get an opinion from an independent HR consultant or solicitor.

calfmuscle

FitOrUnfit wrote: »

OP here. Just realised that most of my post since the last 2 weeks didn't get approved and posted!

Registered just to update.

As stated earlier, the laws exist to protect both employees and employers... We live in 21st Century Ireland.

It was a clear case of the employer trying to pull a fast one hoping I don't react. When I did, the turn around was really quick. Says a lot?

The last few posters have included a lot of evidence on how and why I am legally covered...

Is it that difficult for people to refrain from posting unless that really know the laws etc? All they are doing is discouraging others from reacting to being shafted.

Maybe I'll try to respond to most posts as I had done but they weren't posted.

But everyone should exercise their rights. Nothing to lose, everything to gain. Hard work and the will to work will never go unnoticed. Wanting to work is not an entitlement but wanting to stay on welfare is...

This isn't a case of slipping in the aisles and receiving payouts... This is a case of a loyal employee working for years who developed a medical condition on the job, hoping to return to actual work, not paper pushing or just collecting a salary, after recuperating but on medical advice have requested some accommodation... But well, what's the point of explaining to people who don't want to understand?

Well done for standing up for yourself op. Lots of negatively around at the minute, it's great to see you fighting to get back to full health and work. I hope you enjoy being back to work and continue to improve your health. Best of luck!

FitOrUnfit

bucketybuck wrote: »

There have been some valid questions asked and you haven't answered any of them. That alone says a lot.

Your post sums it all up. If you cared to read I said "Just realised that most of my posts since the last 2 weeks didn't get approved and posted!". Which part of this sentence did you not understand but still wanted to throw the "that alone says a lot" out there?

Thanks to a lot of posters who came up with some great advice, also thanks to the counter arguments as those are also very useful to understand ones position.

I didn't meant to attack any posters who had arguments or counterarguments and I wasn't expecting people to agree that I am the victim or whatever. It's just those posters who are trolling, getting the pop corn, and all that crap which only suits people who have nothing else to do.

Once again, I hope my posts aren't misconstructed. But let's focus on facts if you want to say "you do not have a case".

FitOrUnfit

Re: Water Tight Case was because the employer didn't follow any procedures. They blame covid, but anyway not an issue now.

Procedures include what other posters have mentioned - medical assessments, what kind of accommodation, are there other positions, proof of engaging with the employee, were any options given which the employee rejected, etc. The burden of proof is on the employer to prove "they tried" but in this case they clearly hadn't.

In simple terms water tight because they didn't even try, forget about reasonable, it was non existent.

With my education, qualifications, skills and experience I could probably state that I qualify for nearly 90% of the jobs if not more. My performance prior to illness was at the top end too for a number of years. So that was another thing in my favour with the only caveat being I am not 100% fit at the moment but will be in a few months during which I need some reasonable accommodation.