Returning to work

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I work for a large company and returned to work last October on light duties, working from home which suited my needs but it was only a temporary trial with the possibility of it being a permanent position. In April I was informed that this role was no longer available and I was going to have to go back off sick as there aren't any other light duties available in my previous role. I have one operation left to go to reverse my stoma. My company are treating me now as a long absence employee and I've had one of 3 meetings, the 1st was a capability meeting.

I just wondering if I'm being treated fairly. 

Regards 

  • Hello TCB,

    I'm Eliza from the Community team at Macmillan, thank you for posting a question in Ask an Expert. I'm just posting on behalf of our Work Support team to let you know that they will respond to your question as soon as possible. Our team are quite busy at the moment. 

    In the meantime please remember we also have lots of information, support and guidance on Macmillan's website about work. You can also reach our Work Support team and other teams on Macmillan's Support Line on 0808 808 00 00Our work support advisers are available Monday to Friday, 8am to 6pm.

    As I mentioned, our Work Support team will respond as soon as they can. If you need any further help from the Community team on accessing support through Macmillan's Online Community, you can contact us over email to community@macmillan.org.uk.

    Best wishes,

    Eliza
    Macmillan Community Team

  • Hello TCB

    My name is Linda and I am a Work Support Adviser on our National Support Line. I am able to advise on your Rights at Work when affected by Cancer.

    As a Cancer patient you are protected from disability discrimination under the Equality Act 2010 (or Disability Discrimination Act 1995 if you live in Northern Ireland).  Both Acts define cancer automatically as a disability, which means anyone diagnosed with cancer is considered to be disabled.  Under the Acts, providing your employer is aware of your diagnosis, you should not be discriminated against because of it. Your employer is duty-bound to make reasonable adjustments to support you either to remain at work or to return to work if you have had a period of absence.  This protection is lifelong and does not depend upon an active cancer diagnosis.  

    Our publication “Your Rights At Work” explains more about the Acts and how you are protected in the workplace.

    I am pleased to hear that they have supported you with a reasonable adjustment by agreeing to an alternative job role working from home from October 2022 until now. It is unfortunate that this job role cannot continue. I would advise that you ask if there are any other alternative job roles that you may be able to do until you have had your surgery to reverse your stoma. You do not mention what type of job you would normally do but I would assume it is quite physical and you feel unable to cope with this currently.

    Has your Employer referred you to Occupational Health for a medical assessment previously ? A referral to Occupational Health is considered to be good employment practice. You will be assessed by a medical professional who can make recommendations for reasonable adjustments to support you at work. Both yourself and your Employer will receive a copy of the report produced.

    An Employer is entitled to follow their sickness and absence policy. It does sound like this is what they are doing as you have had an initial capability meeting. This is to discuss your fitness to work or not and what support you may need at work if you feel capable of working. You are entitled to representation at such a meeting and can have a Union Representative with you ( if you are in a Trade Union) or a work colleague.

    Do you believe that your Employer may be trying to terminate your Employment on the grounds of Capability ? An Employer must follow a fair process if they were doing this . If they do not follow a fair process it potentially may be considered to be Disability Discrimination. There is more information on this here. If you feel fit and able to do some work with reasonable adjustments in place then you should make this clear to your Employer. Give them positive messages about how much you enjoy your job and want to continue working . It is unclear how long you have worked there, but you will also have protection from Unfair Dismissal if you have been continuously employed for 2 years (1 year in Northern Ireland).

    If you are being managed on capability linked to the number of disability related sickness absences you have had then, if an organisation uses trigger points to monitor this, they could provide reasonable adjustments by: 

    • not counting some or all sickness absence related to a disability towards those trigger points
    • increasing the number of absences that would trigger a review
    • choosing to record a disability related absence separately to other types of sickness absence. It might be called disability leave or disability-related sickness absence for example. 

     

    If separate categories are not used, employer should exercise care in analysing data relating to that individual and look to the reasons for the absence before taking any decision on the basis of the data collated.  

     

    Disciplining for sickness related absence could be discriminatory.  Absences should only be taken into account if the employer is satisfied that all reasonable adjustments have been made. An employer does not have to make ‘any’ adjustment if it is not reasonable, but they must make sure they are not treating the person badly or putting them at a disadvantage because of their disability.   

    I do hope this advice has been useful but please do not hesitate to get in touch again if you have any further questions.

     

     

    Kind Regards

    Linda

    Work Support Advisor

     

    Remember you can also speak with the Macmillan Support Line team of experts. Phone free on 0808 808 0000 (7 days a week, 8am-8pm) or by email