British Snoring & Sleep Apnoea Association

Hi all,

I took a day off sick a couple of weeks ago. Was bunged up with cold so CPAP with my nasal mask was ineffective.......and I felt extra crap and zombiefied, with a massive headache.

Got my return to work interview tomorrow. Was just wondering how you guys might 'frame' such an event to your bosses?

That's a long gap, RTW interviews should be held on the day of return not a couple of weeks later!

Just be honest with them, say what you have just said to us, they should be understanding, if not and they want to take things further then mention about the DDA.

GOOD LUCK. You wouldn't have worked efficiently or given of your best when you were feeling so bad. I'm sure they'd prefer you on top form ...

Should be understanding however depends on if your absence is deemed excessive or not. With us, if the absence has became excessive (12+ days/more than 5 periods in rolling year) then the employer is entitled to take action, regardless of equality act or not.

My absence used to be almost non-existant.

I'm now up to four in 12 months. 1 due to a minor op. 2 chest infections and 1 combination of zero sleep, zombiefication and pain from my squished spinal cord.
Unfortunately after the first 4 decades of generally good health and hardly any sickness absence I have been landed with 2 problems at once.

Basically, I have an appointment with occ health next week. Will see what they say.

OK, well sounds like your employer won't have any complaints then

One would hope not, but once bitten......

I injured my wrist at work around a decade ago and had a horrendous time with management bullying- especially considering it was a work based injury

I've witnessed a number of people bullied out of their jobs and two bullied into suicide in my time. Another colleague has recently returned to work following an overdose which was wholly down to his life being made utterly unbearable at work- yet he is still being bullied even after that. I'm afraid bullying is endemic in the public sector often as a result of misguided '80s red-braces approach to management.

The complete lack of support from my dept. has certainly opened my eyes again, and I'm under no illusions.

Let's hope occ health aren't stuck in the same Dickensian mindset LOL

Well, following my appointment with occupational health I have now been deemed unfit for work

Not just due to my OSA but also also my crumbling neck!!! I'm on the urgent list for an operation and have been told I have irreversible damage to my spinal cord

Unfortunately, my managers are being complete barstewards. Despite my 20 years of NHS service they are using a loophole to get out of paying me my full entitlement to sickpay! This is forcing me to push for a 'desk job' until my op purely because I cannot afford to go down to half pay. I'm almost ashamed on their behalf! They are able to exercise discretion and they choose not to....just what I need at the moment!

However the DDA code of practice advises “Excluding disability related absence from calculations of when half or no pay is appropriate”. So as I understand the law they cannot use disability related sickness to calculate half pay entitlements.

HR are as yet unable to clarify this for me.
I'm awaiting a discussion with my Union rep.

Experience has taught me, certainly in the public sector, management/HR will basically try to get away with what they can, often flouting the law, until they are held to task.

Assume you are unfit for work for your crumbling neck, not your OSA?

If that's the case, crumbling neck would not be classed as a disability and therefore no company sick pay is payable?

If you have gone over your Company Sick Pay entitlement then they are quite within their rights to cease payment. If they are offering you alternative employment, I'd suggest you take it. What is wrong with doing something else if you are able to?

Discretion is usually used when it's absence due to, for instance, an accident at work, etc.

Thanks

Erm sorry, but what part of 'permanent spinal cord damage' is not a disability? I am awaiting urgent spinal neurosurgery which is to try to halt progression. Untreated I will end up in a wheelchair and possibly a paraplegic. I now have serious problems with dexterity, walking, and balance. I have constant nerve pain, stiffness and headaches. I have had to give up almost 40 years of Martial Art training and am struggling to play my instruments- 2 things that have been a massive part of my life since I was a child!!

No. They have decided I should not be at work as I have both conditions- as they cannot determine if any lapses in concentration that I 'may have' would be due to nerve pain and headaches or the OSA.

As I stated, I said I would rather NOT go on long term sick and asked if my work could be restricted to desk duties until my operation.

I am not asking for more than my sick leave entitlement, rather that which I should be entitled to under NHS and governmental policy.

HR are using a technicality to reduce my sick leave entitlement. i.e. although I continuously worked for the trust for 5 years (with 20 years previous reckonable NHS service)I was funded through an agency on a long term contract until I agreed to accept the post they offered me permanently. They are construing this as a break in service even though I was and I am still in exactly the same post.

Hence, I am now placed in a situation where my employer wants me to stay off work until recovered from my operation, but are trying to get out of paying me my full sick entitlement.

I view this petty mindedness to 'fiddle' me out of a couple of months sick-pay, that for the first time in my working life I have needed, as blatant discrimination and indeed in contravention of the Disability Equality Duty (DED) and now the 'Public Sector Equality Duty' that Public Service employees are bound by.

NHS Terms and Conditions state:

"Section 12: Contractual continuity of service
Reckonable service

12.2 Employers have discretion to take into account any period or periods of employment with employers outside the NHS, where these are judged to be relevant to NHS employment."

Erm, I think 'doing exactly the same job' is indeed relevant LOL

However, the problem lies with 'discretion'. I think choosing not to use this to support an employee is pretty low to say the least.

I'm willing to take it all the way to a tribunal and let a judge decide.

"However, the problem lies with 'discretion'. I think choosing not to use this to support an employee is pretty low to say the least".
Hi there, discretion does not mean that your employer can pick and choose. It must be operated in a fair and consistant manner or it ceases to be discretion. For example, if they have taken someone else's work history into account in a favourable manner in the past and then used your history in a less favourable manner then a tribunal board would almost certainly rule against them. Point this out in your next meeting and see the response, it is quite possible that they don't even know. Employers have a tendency to operate their own personal legal system as it suits them and ignore the laws of the land. Quite often the only way to make them behave is to chuck your job in and let a tribunal decide although in cases of withholding wages I think you can go to a tribunal without leaving. Seek some legal advice before doing anything rash though.CAB are usually helpful in such matters, regards, OV.

Absolutely!



LOL, yep spot on there. I have been a staff side negotiator in the past and the willful ignorance and complete disregard for the law was very worrying. I had to take a copy of the relevant legislation into meetings in the end and hand copies of the sections that they were trying to apply illegally to everyone-highlighted in with yellow fluorescent marker-before they took notice.

To be honest, if they have used 'discretion' for any previous members of staff who are able bodied but refuse to do so with me they are treading on very dangerous ground. Luckily I have a very good union rep who is on the ball with the latest acts and government guidance.

Further to this there is a specific legal obligation and duty for public employers to promote and support disabled staff.

However, what concerns me the most is this. I have been a dedicated and committed employee, often going far beyond what is expected. Now, due to a couple of medical issues the attitude towards me has completely changed. My manager has banged on about staff shortages etc. but never once asked me how I'm doing, or even wishing me good luck for the op.

Anyway, thanks for the reply. Much appreciated.