Following a heart attack at work and ongoing angina my employers are trying to dismiss me after 20 yrs continuous service rather than pay redundancy. Occupational health have said I’m unlikely to be covered under disability act although I think I would be. Can anyone advise me please?
Would I likely be covered under the d... - British Heart Fou...
Would I likely be covered under the disability act if dismissed from job
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NickPH
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I did 15 yrs for stagecoach bus I got finished cause I couldn't do my job anymore they paid me 12 weeks severance pay I've got heart failure and dilated cardiomyapathy
I didn't think they could dismiss you because of your heart problems unless a risk assessment suggests the job is detrimental to your health.
That said if you are still able to work and I do (self employed contract work) after bypass, stroke and 2 stents then I am not sure you can get disability.
I am far from an expert and I am sure those who know more will soon come along and help.
You should probably contact ACAS if you think you're being unfairly dismissed.
A heart attack and angina alone probably won't be enough for disability - but I'm only going on the fact that I know people that continue working with angina and following open heart surgery.
Edit: I misread your post and thought you were asking about disability support allowance - my bad. Rewind then - my works clinician told me I was covered under the disability act while I was still recovering from myocarditis, and occupational health agreed.
I second you ringing ACAS, they will know exactly what is right. Are you still able to perform your job efficiently?
Jean
As others have said I'd ring acas and Ur union if u have one
A heart attack is covered by the equality act let them sack u and then take em to cleaners and don't sign Anything
its now the equality act 2010. you'll find definition details on the gov,uk website; unless you are in NIR.
MilkfairyHeart Star
I was retired early on grounds of ill health. I could have been sacked legally as I was no longer able to carry out my job.
It was not possible to make reasonable adjustments to my working environment.
I was able to take ill health retirement because my vasospastic angina is resistant to treatment and I live with frequent debilitating symptoms and end up in hospital once or twice a year for over a week.
I had used up all my sick pay too.
Talk to your union, Citizens Advice.
I also have a PIP awarded indefinitely, enhanced for both sections.
Good luck!
If you are unable to fulfil your duties under your original contract of employment and your employer has no options available to take reasonable steps to accommodate your change of circumstances (as in for example there are no alternatives available) and, if necessary can demonstrate that to be the case say to a tribunal, then they have the legal right to dismiss you as allowed under the Equalities Act. What is 'reasonable' is not specified and may only be defined by case law. However as others have said if you feel it worthwhile you could talk to Citizens Advice for their advice and opinion on the strength of your situation, but I would be be wary of employing a solicitor at this stage unless you have a strong case, for you will be likely liable for any costs should you lose any appeal against dismissal.
thanks everyone for your advice 😊 my employers have been very underhand with my ‘welfare’ meeting and added to my O/H assessment that I’m unlikely to return to full contractual duties. I’ve been on adjusted duties since my heart attack in 2020 which happened whilst out on track at work I’ve been awaiting followup assessments due to covid back log and an angioplasty which I had 5 weeks ago. They’ve made permanent adjusted duties for other employees but are trying to ‘cull the herd’ as they’ve recently lost contracts 😢
thanks everyone for your advice 😊 my employers have been very underhand with my ‘welfare’ meeting and added to my O/H assessment that I’m unlikely to return to full contractual duties. I’ve been on adjusted duties since my heart attack in 2020 which happened whilst out on track at work I’ve been awaiting followup assessments due to covid back log and an angioplasty which I had 5 weeks ago. They’ve made permanent adjusted duties for other employees but are trying to ‘cull the herd’ as they’ve recently lost contracts 😢
You might find this of help
equalityhumanrights.com/en/...
NickPH in reply to
thanks you I’ll take a look
Hi Nick
I work in HR and the process that your employer is looking to pursue is correct as it would be dismissal due to Ill Health and not redundancy due to the role no longer existing.
However, I would strongly recommend that you contact ACAS as others have mentioned because they may be able to help you with regard to the point of being covered under the disability act. I know that when I had an OH assessment I was told that I would be covered (I have dilated cardiomyopathy and heart failure).
Is it possible for you to contact the provider to ask how they arrived at the decision of you not being covered?
Has your employer taken any steps to try and make any reasonable adjustments to accommodate your safe return to work? If not, why? Did OH make any recommendations for adjustments and if so have they been implemented?
Can you reach out to your cardiologist or GP to see whether they could write you a supporting letter and would confirm their opinion on whether you would be covered by the disability act?
My advice - start building your evidence and get EVERYTHING in writing. Any conversation, send an email putting it all in writing and ask them to confirm it back to you that information is factual and correct.
I hope that this helps a little and good luck with it, I know how stressful these types of situations can be. Keep talking to us and let us know how you get on.
Best wishes
Soap
in reply to MummaSoap
You have given some first class advice but one point to note is that the 1995 Disability Act was repealed and replaced by the 2010 Equality Act.
MummaSoap in reply to
You’re quite right, apologies for the slip up there! Thank you for helping to furnish Nick with the correct information 🙂
Hi thank you for your advice it’s really appreciated. Basically I returned to work 3 months after my heart attack initially I had recommendations by my GP for light duties and they adjusted my role allowing me to work days in the yard instead of shifts on track. This has continued for over 2 years as my line manager required someone in this role. I have only just received an angioplasty 6 weeks ago and the O/H assessment was only 4 days post op and so was too early to ascertain if it would resolve my ongoing angina. The O/H assessment was only a phone call from Canada and the report given to me at the welfare meeting had been updated with out my knowledge ( is this even allowed?) it now includes a new statement that my angina will permanently prevent me from returning on track which is not the case. ( is this not have requested a letter from my cardiologist. Is this likely to over ride the O/H report? Many thanks Nick
Gosh this sounds like quite a complex situation!
I wouldn’t like to speak for a company that I’m completely separate from but my understanding is that an employee should be offered the opportunity to review their occupational health report prior to it being sent to their employer. Did you receive a copy of the report before the additional paragraph was added?
I’m unsure whether a letter from your cardiologist would supersede it as the point of OH is to be an impartial 3rd party providing a medical opinion relating to your job role. That isn’t to discourage you from obtaining a letter from your cardiologist - it’s likely it could be beneficial.
I would argue how the OH assessor could make a claim regarding your future fitness for work a) so soon after your surgery and b) without the presence of a crystal ball. Even you yourself won’t be able to answer the question of how you will feel in 6 months time because you haven’t got there yet.
Personally, I would get something in writing to confirm your expected recovery time and then you will have that to reference against both the date of your assessment and subsequent report in order to cross reference and build evidence to indicate that it was too early to take a decision regarding your fitness to return to your track role without you having completed your expected recovery period first.
It may be possible to request a further assessment to reassess your fitness for your role - your employer may be more willing to facilitate that if you have a letter from your cardiologist confirming recovery and their opinion on whether you would be covered by the equality act.
Also I wouldn’t consider an adjustment to your duties for 2 years temporary - usually temporary would be around 12 weeks or maybe 6 months. Run this particular point past ACAS but I think that there would need to be clear reasoning as to why they suddenly cannot accommodate an adjustment they’ve happily allowed you to work for more than 2 years. Did you sign anything when they made this amendment to your duties or get anything in writing to say what the review period would be?
Apologies for my lengthy response!
Soap
Thank you so much for taking the time to explain all this for me it’s really helpful 😊 just as a side note the manager that facilitated my ‘welfare meeting’ was not my line manager and I had never met him before. Also the minutes did not reflect what was discussed in the meeting and many of the responses I gave had been omitted or recorded inaccurately. I’m devastated that they can treat me this way after 20 yrs of service. 😢 Thanks again
You’re very welcome, I’m sorry I can’t be more helpful!
If you haven’t done so already, write out everything you feel was inaccurate or omitted from the minutes and put it in writing/an email because if it goes to tribunal you will need it all in writing. This is where things can get tricky because it’s all about facts and evidence and what can be proved. Get yourself in a good position now to give yourself the best chance of a successful appeal or tribunal case.
Have they given a reason as to why a different manager held your welfare meeting?
I sincerely hope that it doesn’t progress to a tribunal 🤞🏼🤞🏼
Best wishes
Soap
I’ve been accumulating as much evidence as I can and writing down all the inaccuracies in the minutes etc, Your advice has been invaluable and I’m so grateful. I’ll let you know how I get on . 👍
in reply to MummaSoap
Your comment concerning the need to correct any errors or omissions in any formal documents issued by the employer by a written statement from the employee is well made and extremely important if the situation ever gets to a tribunal. I fear the employer in this case is trying to enhance their position by distorting the reality in their favour to increase the likelehood of dismissal should the situation get to a tribunal review.
NickPH in reply to
I think this is exactly what they’re doing .
Have you mentioned that you don’t agree with the minutes? Was there a recording of the Welfare meeting? You have a lot to deal with good luck.
I have been signed off sick by my GP due to all the stress they are causing me by pushing me for a follow up meeting and I’m currently trying to compile a response to all their failings. They didn’t make me aware if they were recording it so I’m not sure.
Doesn’t sound like it was recorded.
Have you been sent the Draft minutes( draft until approved ) or just shown them.
I would put into writing you didn’t agree with the minutes and why
they sent the draft minutes 3 weeks later. They are completely inaccurate and many of my responses have been omitted. I’ve advised them of this and am in the process of putting it all I. Writing
Make sure you take a union rep or someone else along to the meeting, to take notes and as a witness.
You could be fearing the worst, when we are unwell we feel vulnerable and anxious about the future.
If there’s another meeting ask to take another colleague with you.
The welfare meeting is to help both you and your employer.The meeting is to access the best way forward for both of you.
Your GP should also issue “ fit for work note” The problem for you is the last statement on your health.
Before the meeting it should have been explained to you the reason for the meeting to stop the anxiety you have now.
In practice the law on this is very complicated. It was probably created for the benefit of lawyers rather than employers and employees. The only way to really know where you stand is to speaking to a specialist employment lawyer.
an awful lot depends on what job you do. Contact ACAS and get the right advice.
This is it in a nutshell. All points covered.
Before I retired and during the pandemic my boss asked occupational health for advice about what I should be doing.The email they sent said I was protected by the disabilities at work act.I have mixed aortic valve disease.
They don’t make a person redundant, they make a job or position redundant. They can’t get rid of you and then replace you. That means the post isn’t redundant
Can you still do your job? Have you asked for reasonable adjustments to accommodate your condition? Many people work after having heart surgery and with ongoing angina managed by meds. So I would contact ACAS and your union rep and get some proper advice.
At the end of the day my friends,it just goes to show,no matter how long you have worked for the company or how loyal you have been.You are just a number.Good luck.
Although you clearly do not want to lose your job I would start to consider a Plan B of a negotiated settlement to leave your employer under favourable conditions to yourself. Whilst it is not something to put forward at the present time it is going to cost your employer time and money to see this through and that could be one bargaining tool in your favour. But the other point to remember is that if you see it through to the bitter end and your employer is forced to retain you, you may find your working situation legal but untenable as your employer tries to force you out by other means including for example lack of pay rises.
MummaSoap in reply to
This is a very valid point and definitely food for thought for you Nick. Apologies, it feels like we may have given you a fair bit of that 😂
I’m really empathise with you and can understand that you’re feeling understandably stressed by this. That’s why I would urge you to contact ACAS to get some support and let them alleviate some of that stress for you.
Please do let us know how you get on!
Best wishes
Soap
Hi NickPH, you will not be entitled to redundancy unless your job itslef is being made redundant. Employers are required by law to make 'reasonable adjustments ' so that you can carry on working. My guess is you are working for a small employer who has little knowledge or scant regard for the law. This often happens and can happen in large firms too. The advice about ACAS is food and you can contact them, or try to fine a local employment lawyer through Goofle or the solicitors regulation authority.
Follow this link and it will explain the your heart is covered by the disability act, so long as you have an ongoing heart condition. Before you do, I'm not an expert and this is not advice, just an opinion from someone who has a deal of experience in Human Resources.
eoc.org.uk/disability-discr...
Good luck, Steve
A horrible situation for you ☹️ Especially after such long service. I had similar. It depends on how you are affected by what you have been through and they should refer you to occupational health who in turn advise reasonable adjustments.
Something to consider might be ill health pension too. But get advice from professionals this is big & important. Definitely ring ACAS for advice & support. Best of luck 🤞🏽
if i you are still capable of doing your job and your angina is not stopping you then tell them you do not want to leave, you may have to get a “fit for work “ certificate from your GP but they cannot make you leave if you are still capable of doing your job
Failing that they have to send you a written notice and then pay you for 12 weeks once you have received the notice
I know all this bc the exact same thing has just happened to a family member
Hi there,
I have ongoing angina and my OH doctor said I was covered under the disability act. If you’re unable to perform your normal work duties then your employer has a duty of care to make reasonable adjustments or redeploy you to a role that is more suitable.
They are a huge multi national railway construction company and have made similar long term adjustments for other employees with similar health conditions although they are restructuring and advise me that no suitable roles are available
I googled is Heart Disease a disability and IT IS xx
in reply to MumaLines
The definition of a disability within the 2010 Equality Act Section 6 para 1 is as follows
A person (P) has a disability if—
(a)P has a physical or mental impairment, and
(b)the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.
If a heart condition fulfils these requirements particularly in respect of 'substantial and long term adverse effect' it is a disability, if it does not then it cannot be classed as a disability.
I have 'heart disease' but do not consider myself to be disabled nor would an employer.
NickPH
Hi, I have been reading your post and all the replies. I am so sorry for the situation you find your self in. I am the head of OH in a large organisation and have worked in OH for over 30 years including the railway industry. As others have said this is complicated.
You have been given loads of really good advice but just a few things I would add
If you are in a union then I would seek their support and input
In terms of disability as mentioned by others this is the the Equality Act 2010 and it pertains to health and disability issues (not specific diagnoses) and looks at functional capacity. If you have a condition (to be considered without treatment) and the condition has lasted or is likely to last 12 months or more and the condition has a substantial and adverse effect on day to day living then you are likely to be disabled under the terms of the Equality Act. I would say you are likely to be deemed as disabled for the purposes of the act. However OH can only offer their opinion and it is for the manager and the organisation to reach their own conclusion and further more it is only a legal forum that can determine whether you are or are not disabled under the Equality Act and therefore whether or not you have been discriminated against on the ground of disability. The Equality act also covers other protected characteristics.
Reasonable adjustments must be considered (but do not have to be implemented if they are not operationally feasable) however the larger the organisation the greater the onus to adjust as they are seen to have more resources. These adjustments are to bring you onto a level playing field with a non disabled employee. However if the adjustments mean you cannot do your substantive post i.e if you cant work at height but this is most of your daily job then it is not operationally feasable. If it is only a small part of your job then it is reasonable to adjust.
In relation to the OH report it is good practice to allow the employee to see and approve the OH report prior to release to management and HR however there is no actual obligation to do so. We always allow employees to see the final report and don't release if we cant agree the report.
I would add that being disabled doesn't offer full protection from dismissal on the grounds of health incapacity. If you are in a pension scheme then you could explore the option of ill health retirement.
Employees can be released on medical grounds if despite adjustments they can't undertake their role remit this is often called medical incapacity i.e they are medically incapable of their job. This can run alongside ill health retirement.
If your role is simply being made redundant the is a whole separate issue and largely not related to disability. However I have seen redundancy used to dismiss disabled employees.
You could involve access to work if this has not been done this is a government funded organisation to support disabled staff in work and employees contact them directly not the employer.
Sorry I have written a lot and I know how stressful this situation can be. I suspect that your OH provision is third party.
I think that the advice offered by others is very sound if you are not in a union and seek the advice of an employment solicitor would be good, although I appreciate there are significant cost implications. I appreciate this is not an easy route. However it is important that the business takes all reasonable steps to accommodate you and ultimately if you feel they have not and they dismiss you then it would be an issue for a tribunal. It is sometimes very easy for businesses to say there are not suitable alternate work. However sometimes this is true. Although I don't know the specifics of your role or whether you come under personal track safety requirements etc.. Do you have anyone who could advocate for you? the more stressed we get the harder this all becomes.
Sorry no easy answers. Hope this adds to the great advice you have been given. Hope this all makes sense. Let us know how you get on.
Thank you for your detailed advice. These clarifications are important.
"Reasonable adjustments must be considered (but do not have to be implemented if they are not operationally feasable)"
"Employees can be released on medical grounds if despite adjustments they can't undertake their role remit this is often called medical incapacity i.e they are medically incapable of their job."
I was granted early ill health retirement as there were no reasonable adjustments possible and I was physically unable to carry out my role.
Thanks for taking the time to explain this all to me. I am an ETM technician and my initial heart attack took place whilst I was out on track. Since returning I’ve been fulfilling all the duties of an ETM technician on days but not returned to track duties as I’ve been awaiting an angioplasty. This O/H assessment was only held 4 days after my angioplasty by phone. I will be able to return to track duties once my 6 month course of strong anticoagulant medication finishes. I am at a loss as to how any assessment can make a conclusion that I’m unlikely to resume full contractual duties only 4 days post procedure.
No problem, happy to offer any advise from an oh perspective. I fully agree assessment was way to early. I wonder if you should really be reviewed by an oh physician. You should also be given a reasonable period of time to make a recovery. I would class this as corrective surgery for work purposes. The primary purpose of oh is to keep people at work or rehabilitate them back to work. Best wishes hope it all works out.
thank you so much. I’ve just spoken to my cardiologist and he’s writing a letter stating he sees no reason why I will not be able to resume my full contractual duties once my anticoagulants finish in a couple of months. Surely my cardiologists professional opinion should be taken into account by my employer? Thanks again for your advise 👍
in reply to Esentepe
Excellent post 👍
Please take advice from your trade union if you are a member. I lost my job after having a group medical in which I finished all of the tasks satisfacturely. We had to see a doctor after completing the tests, the doctor just looked at me after reading my test results and said 'you have failed the test'. I objected,and told him that I had done everything on the test without any problems. After the third refusal by me to accept what he was saying, he wrote on the form 'UNFIT FOR WORK'. I asked what that meant, he said that 'I WOULD NEVER BE ABLE TO WORK AGAIN', because any future employer would't be able to get insurance cover for me. I asked my trade union to help sort this out, but unfortunetly after consulting our Solicitor, I was told that unless the doctor chaged his mind and removed that phrase then he was right. It later transpired that I had been set up because of my being the union rep. My employers wanted rid of me, and they won. If you look online or consult Cityzens Advice, you may find the help you need. Even if you are not a member of a TU, just find out which TU covers your job and ask if they could help you, in my experience I believe that they will. After spending 35 years working, I was suddenly unemployable, it took a very long time to come to terms with it. I was helped by the local Mental Health team for twelve months, but it still took quite a few years to get over it.
So I hope that you can sort your problem out, my experience is nothing compared to yours, so best of luck for the future.
bludnut
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