So, how long off work is too long?!

The situation:

I've worked for my current employer since Jan '05 (some here may remember my joy at getting a job in a Honda Garage!).

End of July '05 my knee collapsed resulting in five weeks off and my return to work having to use a crutch to walk (but still having one hand free I could carry stuff and still do my job).

Had a day off in Sept '05, two in Oct '05 - both knee related (bad days, locked up, couldn't walk at all etc).

In Dec '05 they gave me a written warning for "Unreasonable Levels of Sickness" (the implication being that I could not give them a definate date when I'd be 'fit' so they were wanring me for time I 'may' still have off in the future). This I fought through the companies own procedures and won. Warning was withdrawn.

In mid Jan '06 I developed problems with my shoulder because of the strain of using a single crutch for so long = two weeks off, during which I had the first op on my knee to stick a camera in and have a look around. This got infected, Sepsis, resulting in some 'interesting' moments with my pulse and temperature!

There is still some residual infection under the joint which basically means I'm on two crutches now and have not yet returned to work - so, a further 8 weeks to add to the 5.5 already taken.

All of the above has been certified by my Doc.

My manager now barely speaks to me when I phone up every week (as per company procedures) to let him know that there's no change to my situation. In fact the past few times he can't seem to get off the phone quick enough, he's normally a very friendly guy by the way.

I post my certificates in now and just keep my head down wondering if they are simply too nervous to fire me over the phone! I mean lets face it, even though it's down to a single injury rather than multiple reasons, it's still a hell of a lot of time off when I've barely worked for the company 15 months. I wouldn't blame them.

What I don't know is can they do that - just fire me over the phone or by letter? Or do they have to wait until I actually return to work?
It is stated in my contract's Terms and Conditions that 'Unreasonable Levels of Absence' come under Gross Misconduct.

I'm not losing my head over it, what will happen will happen, and to be honest I'm more concerned about the prognosis for my knee that my job. But I have started a course to become an acredited bookkeeper as a back-up - just in case I end up having to lead a more sedate life in an office (yerch).
I'm curious more than anything and have feck all knowledge of employment law.

cannot be sacked for being off sick/injured as long as you keep sending doctors notes in.

[Biker Biggles]

Not correct.An employer can dismiss you for failing to fulfill your contract.Not coming to work for whatever reason comes under that.The truth is that an employer can dismiss you for pretty much any reason (or even no reason)providing they follow correct proceedure.I say that because once they dismiss you,you have to take them to an industrial tribunal and sue for unfair dismissal.It is in reality almost impossible to win these cases unless you can show incorrect proceedure.(Or racial/sexual dicrimination,but that's another issue here.)

Originally Posted by Biker Biggles

Not correct.An employer can dismiss you for failing to fulfill your contract.Not coming to work for whatever reason comes under that.The truth is that an employer can dismiss you for pretty much any reason (or even no reason)providing they follow correct proceedure.I say that because once they dismiss you,you have to take them to an industrial tribunal and sue for unfair dismissal.It is in reality almost impossible to win these cases unless you can show incorrect proceedure.(Or racial/sexual dicrimination,but that's another issue here.)

ACtually the first poster is correct.

You are unable to be fired whilst you are signed off sick with a doctors note. Once you're off sick completely legit.. you are in a sense, invincible.

I know, cos i used this against a former employer when they tried to make me a scape goat in an attempt to keep a contract even though id done nothing wrong. I won £7000 from them in an out of court settlement.

Originally Posted by 22

cannot be sacked for being off sick/injured as long as you keep sending doctors notes in.

That comes from the HR dept of a large manufacturing plant.

K, you say your knee collapsed. was this at work or in your own time was it brought on by a certain procedure you were following at work to complete a job you had been regularly asked to do the fact you returned to work on one crutch speaks volumes in itself.

with most firms you sign a self certificate form from your company for the first five days. then you need doctor's notes depending on the amount of time he signs you off sick.
generally speaking, an employee off work on account of sickness or injury is entitled to SSP for up to 28wks abscence. for periods of abscence after 28wks, incapacity benefit may be payable by the DSS.
so long as you keep them updated and keep doctors notes going in you are more than covering yourself.
you say you were actually working there only a short time.........
....are you in a union of any kind, remember, if not you can still get advice from a union rep., C A B.
the fact that your employer is not speaking to you is something you can work on when you go back to work. just keep in regular contact about your abscenses.
there attitude is a regular one in management: only here for a short while, off already!

dont worry, get yourself right first.

keep a diary of all visits to doctor, all calls to work etc. hopefully you'll be better soon but if your firm try any threatening tactics, you have more than enough information to take procedings further.

sorry its so long but i have witnessed this kind of thing on occassion and a firm (quite rightly) has to decide between someone taking advantage for time off or someone with totally legit reasons for abscence of which from what you have said, yours is.

Mal

[northwind]

My employment law stuff is all about 6 years out of date... But I recently found myself in a similiar situation. I'd been signed off for 6 weeks with the hip, and received a letter form the bank telling me that if I wasn't back on a certain date, they were going to cut my wages to half! I have no idea why they did that, since my 6 months of 3 hours per week of employment law was more than enough to traumatise them... Then, every time I was off after that, the same thing happened, and I had to beat them with sticks again

But, to be honest, that was very onesided, I'd worked at the company for 5 years and had full contractual and legal rights, union membership, and cretins for opponents. You may not, since you've been there for not much over a year- I could be wrong, but I believe some of the employment rights pertaining to sickness and dismissal come in after 2 years.

Even if that's the case, they would need to establish "unreasonable" in the context of your absences. You've suffered a very serious mobility injory and all the absences have been connected to that, so unless they've defined "unreasonable" in the contract itself or specifically implied terms of their standard terms of employment into it (and provided those terms to you) they would have a hard case, I think.

I would speak to an actual HR lawyer at your earliest possible opportunity. The current situation is bad enough, but when you return you may find that their attitude to your employment continues and it becomes difficult or even impossible to work there. Constructive dismissal- ie, forcing you to quit instead of firing you- isn't all that common but it does happen and it's good to know how to fight it.

Depending on your management, you may very well find that they're now actively looking for ways to dismiss you, so you may need to be prepared for that- this happened with me, every minor mistake became gross negligence, every success was ignored, until I did some more of the beating-with-sticks.

Personally I'd also advise against taking too much advise from an internet site! Including my own. Speaking to a lawyer or solicitor (can't recall what the juristiction in England is) is common sense, I think, but you really need to be careful. A professional can advise you not just on the law, but how best to use it. A girl in my office had MS, and was off frequently as a result- and no wonder. She found out the law, and basically walked into the office one day and waved it about like a baseball bat. "You can't fire me, I have the law on my side, ha ha ha!" Now, she was right, but the way she did it prejudiced everyone, even other employees, against her. So it's stuff like this that requires experience as well as knowledge to do well.

[TSM]

When i was off because of my back, they paid me full for the first 2 months then halfed my wage till i got back.

So are you saying that they cant do that?

There are more urban myths around employment law than most subjects, so anyone who has posted here advising you to seek expert advice is wise indeed.

As a full-time trades union official and employment lawyer, I could be tempted to lecture here, but that would do you little good without detailed info as to your situation, so I'll leave my bit of advice to one simple thing; join a union. If you do not feel able to do that, try TIGER (stick it into google and you should find it) which is a Govt sponsored employee rights site, or www.dti.gov.uk/er which is a good place to start.

To set your mid at rest on one thing- they cannot fire you by letter or 'phone, the current law demands a meeting at very least or the dismissal would be unfair but yes they can fire you on grounds of ill health sick note or no sick note. However, the law demands some knowledge on the employer's part and, having been there 15 months you now have unfair dismissal rights as well as, possibly (and here I eat my own words about lectures) rights within the Disability Discrimination Act 1995. So back to that one bit of advice, join a union. Trampie works at a car dealership and belongs to GMB, and you can do a lot, lot worse for support and advice in these complex times.

Nuff said, good luck and, er, join the union.

Chris, Trampie's partner in biking madness.

Originally Posted by TSM

When i was off because of my back, they paid me full for the first 2 months then halfed my wage till i got back.

So are you saying that they cant do that?

They can. Sick pay is at the companies discretion.