Termination of contract after giving a date to go back to work

[trolleydollyuk]

it's been a tough few years, diagnosed June 2010, surgery July 2010 and then chemo followed by debulking surgery and then another two cycles of chemo, had two recurences since, one end 2011 and then again end 2012. I finally finish treatment in March and by April my manager is over telling me she has set a termination date for the 15th July if i'm not back to my flying duties. On the same day i go for a routine check up to find that i have a mass in abdomen. Thankfully am told the mass is a cyst and needs to be drained, have this done on the 20th May. My consultant writes to the company asking them to help me ease back into the workplace doing work on the ground before a suitable rehab plan will see me back into my flying duties. A date of the 1st of September is given. I appeal the decision of the 15th July and ask for an extension, in return i get a letter of termination. Am Livid!!! Why terminate my contract when finally in three years i have given you a date to come back. Has anyone else had their contract terminated? Would be grateful for any advice and similar stories. I am taking this to tribunal.

[Whippit]

Dear Shabila

What a terrible situation to be faced with. I would imagine you have a union at work. Even if you haven't been a member before please contact a union rep and see if they will take on your case if you join.

I was faced with a change of contract on returning to work but not termination of contract. This is just frightful. I'm a union caseworker and would be happy to offer general advice on what options you might have. My advice would be to avoid a tribunal if you can find another way to resolve this situation. Hopefully someone else reading this will be up-to-date with employment law and might be able to advise whether your employer has acted unlawfully in terminating your contract during your sick leave.

Please PM me if you think I can help or provide support. xxx love Annie

[Hidden]

Oh dear that isn't good, I am so sorry you have to face this. I would agree with Annie: you need knowledgeable advice and support - and in particular some accurate legal advice to understand your options first - you may find that a simpler constructive dismissal claim threat will gain you an ex gratia payment without the tribunal hassle, for example: these tribunal claims can take a LONG TIME.

You need to balance your immediate feeling of needing to hit back with the more practical aspects of what is achievable and in what timescale.

Fingers crossed for you.

Love Sue xxx

[Whippit in reply to Hidden]

Just thought I'd mention that in order to make a constructive dismissal claim you have to have been dismissed. It's generally better to negotiate while you're still in employment - either into another role that fits your disability/health problems, or a lump-sum severance payout which you could negotiate get if the company have been unlawful. Sometimes you can avoid going through the painful process of a tribunal by lodging a grievance on the way you have been treated, give HR a draft of the grievance and give them 24 hours to decide if they are prepared to offer you a severance payment to 'go quietly'. If you belong to a union they may have access to legal advice. Sue's right it is worth seeking legal advice on your situation as this may clarify the best way forward for you. xxxx A

[MargaretJ in reply to Whippit]

Constructive dismissal is deemed to have occurred when the employer has done something that makes it impossible for the employee to continue working and they resign, they do, however, have to leave. In my view this is a case of unfair dismissal on the grounds of disability discrimination.

[Whippit in reply to MargaretJ]

Yes, I agree Margaret. I'm glad you saw this with all your experience. Wish we could all have a conference call with Shabila and put all this knowledge together. At least Shabila knows we're all gunning for her and in support. That's a good base for a start.

[HerThing]

Hi Shabila

It has been a while since I have had any involvement in such issues and without knowing everything in detail it is difficult to establish where you stand. There have been recent changes which I understand makes it more difficult to take a case to tribunal, I even recall a charge of £2000 being mooted, but I am not sure.

Cancer is recognised as a disability and as such you have certain protections against discrimination. An employer can not unilaterally terminate a contract of employment without risking a claim for unfair dismissal. There is a however a tool they can use to do so under certain circumstances called 'frustration of contract.' This effectively means that they terminate because they are unable to fulfil the terms of the contract because you are unable or unwilling to fulfil your obligations under the contract of employment.

I would suggest you either contact your union rep (if you have one) or seek a free a half hour with an employment law solicitor. That should give you enough info to decide what steps to take. ACAS is also a good resource for information, but they are unable to legally advise you. acas.org.uk/index.aspx?arti...

Best wishes

Andy x

[HerThing in reply to HerThing]

I had a quick browse of the ACAS website and this page refers to discrimination. Hope it helps... acas.org.uk/index.aspx?arti...

Andy x

[MargaretJ in reply to HerThing]

My 20+ years of experience appearing at employment tribunals is that frustration of contract is difficult to win, though it is 4 years since I was involved, and there have been changes, discrimination law is still effective and the employer must make all reasonable efforts to accommodate disability. In this case, despite the need to try conciliation via ACAS first, my view (without a full picture of the facts) would be that this employer has not done so!

[HerThing in reply to MargaretJ]

I agree Margaret, it is a difficult win for an employer. It is though used by rogue employers to intimidate unrepresented workers into backing away from taking any action. When challenged, I have never known an employer to be successful and a settlement is often preferred before the case reaches tribunal. I also agree that the employer does not seem to have met their obligations in this case.

[MargaretJ in reply to HerThing]

I have always encouraged people to join a Union for personal representation because even where they are not recognised for collective bargaining the law dictates that they must be accepted for individual representation. Mind you I had a major dispute with my Gen Sec when he was promoted from among my colleagues because, in my view the Union should exist for its members and not the other way round! LOL! Divorcing the VP elect led to me being pressed into taking "voluntary" severance and, as I realist, I went! a determined employer will get rid in the end but putting up a good fight ensures adequate compensation!

M

[ChrisH]

I am really sorry to hear what is happening to you with your work. I would suggest checking all the above mentioned people. In addition I would also try your local CAB, and see if the Macmillan people can give you some advise. I suggest Macmillan as they should know the most up to date laws regarding cancer sufferers.

Love

Chris

[HumbleD]

Hi Shabila,

My heartfelt sympathy , try Macmillain, there was a special unit set up to deal with this type of issue. They helped me enormously work through my options regarding employment issues. I had to book a time for ring back, not sure where you are based but in Leeds there is the Robert Ogden centre who you could ring. I took early retirement on health grounds after two years of illness with OC, and second line chemo. I did find the Union good in helping me negioate with HR and my line manager.

Good luck, I know that I found I felt a lot better when I had worked through it all. Do you have a occupational health unit, I had to have regular interviews with occupational doctor.

all the very best,

Wendy x

[Whippit]

Dear Shabila

Sorry to add another thought. I also used the Disability Law Service which has a free telephone call service you can ring to check on disability discrimination and employment rights. I found this service to be very helpful as a first port of call to give me some feedback on my particular situation. Andy is absolutely right when he says that arbitration services expect employment disputes to be settled between the employer and employee and they are actively discouraging progress to a tribunal.

Here are their contact details:

Telephone:

Telephone: [phone]

Choose option 1 for the MS Legal Officer

Choose option 2 for the Advice Line

Choose option 3 for Administration

If you have an Employment Discrimination enquiry and you live in Greater London please call: 020 7791 9812 or press 6 when calling our main number.

You're getting some really great advice here. xxxx love Annie

[wendydee]

Dear Shabila, that is absolutely disgraceful. I am not surprised you're angry and disappointed. i hope you can take some of the excellent advice on earlier answers and follow it up. I know that Macmillan advisers have access to people who specialise in employment issues, so do try them if you don't get anywhere with the other ideas. They have Macmillan nurses or advisers in most of the large hospitals.

I hope you get good support from at least one of the avenues that has been suggested. Stay focused, Sue makes a good point about waiting until you can think more calmly and rationally. If you can cope with all the cancer-related stuff, you can cope with an unfair boss.

Love Wendy xx

[MargaretJ]

I was a Union Official! What is your Union doing about this? You may have a case for Employment Tribunal! I went on after I left the union doing this work for CAB until 2009. The lack of care and concern and unwillingness to negotiate a phased return to work would, in my view be unreasonable.

Sorry I am steaming angry on your behalf!

Love,

Margaret!

[trolleydollyuk]

Thank you for all the advice. I have been in touch with the union, acas, cab, macmillan, everyone i have spoken to seems to think i have a good case. I will hopefully be meeting with the union solicitors over the next couple of weeks to see whether they will take the case on for me. If i get a negative response i have decided to take it on myself. For anyone else who finds themselves in this situation the new rules state that we have to pay a £250 issuing fee and £950 hearing fee, this is going to put alot of people off. However according to CAB if you are on income based employment and support allowance you can fill in a remission form, also if your union takes on the case for you they will pay these fees. The only thing working against me at the moment is the length of time I have had off due to recurrences but why sack me when i finally am able to give a date to come back.

[HerThing in reply to trolleydollyuk]

Just a thought that is worth mentioning with reference to any action taken against an employer. The normal route has been through the tribunal service as it is less formal than court action; both parties often representing themselves. However, there is a cap on the amount of compensation a tribunal can award so larger claims can be, and have been, dealt with in the county/high court. No one is obliged to use the tribunal service even for lower value claims. Of course, unless representing one's self then legal costs can be expensive (though costs for successful claims are more likely to be awarded in the claimants favour than they are in tribunal). In light of the new tribunal costs I think the courts are likely to see many more employment litigation cases started. Just such a threat might even be enough to bring the employer to the negotiating table...legal costs are expensive for them too and the financial penalty if they lose is potentially much higher.