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Before I get a legal advice, will you sense check this for me?
1. My sister, although she has has learning difficulties, has succesfully held a job as a carer in a home for the last 20 years. She lives independently with her boyfriend. Its all great.
2. About 5 years ago she needed a hip replacement. When she came back from that, her hours were cut in half, and her role was changed from a care assistant to running the laundry.
3. 12 months ago her second hip collapsed very suddenly, and she is on a long NHS list for a second hip replacement. She has been off work for 12 months and on Thursday will in all likelihood after a comprehensive occupational health process, be dismissed.
4. I'm looking to protect her as much as possible. I am happy enough dealing with the fair/unfair dismissal side of it. But it could be possible to draw a link between her new role in the laundry, and the collapse of her second hip. Although her contract hours were reduced "to help with her recovery" in reality this was just a reduction in core contract, and each week she worked one or two extra shifts on top. So it was not really a reduction in hours- just in holiday/sickpay entitlement. How realistic is it to argue that the new role in the laundry as she recovered from her first hip replacement, with new contract was a failure of an employers duty of care to her?
5. And if so, how likely is a PI Lawyer to pick this up on a Conditional Fee Agreement?
Having given 20 years of her life on minimum wage, worked through COVID, and about to get dismissed through no real fault of her own, I'm weighing up reasonable courses of action and sensechecking what I think.
Many thanks
So it was not really a reduction in hours- just in holiday/sickpay entitlement.
If she was working the hours at the same employer it shouldn't make any difference to these entitlements.
TBH I'd have thought having already had one hip replacement it'd be a bit difficult to argue the second was caused by the job.
I don't want to stop you, but I don't see anything other than cost & time in your action, if she does get anything it'll be 'slim pickings' and probably offered less than she's already had.
Unfortunately I see little case here in reality. Is there a realistic prospect of her ever getting back to work? What timescale? What sort of home? State / private / 3rd sector?
Physically the difference between laundry and care assistant is not huge I would have thought so hard to blame that for the second hip. I don't see an unfair dismissal here.
You could try threatening an unfair dismissal case and hope they offer you money to shut up and go away I guess. You might be better off putting your energy into making sure she gets all the benefits she is entitled to - invalidity and whatever - I know no details. Any pension contributions?
With no knowledge it sounds like she has degenerative hip issues, not anything caused by her job ?
I am guessing all you can do is make sure the company followed the sick policy of the organisation before dismissal.
I really cant see that you will get very far with any legal action... not that I know anything
Also if / when she gets fit enough again another job will be not too hard to find. To be blunt folk with a mild learning difficulty are valuable as kind loyal care assistants and smart employers know this.
She has been off work for 12 months and on Thursday will in all likelihood after a comprehensive occupational health process, be dismissed.
This is likely to be on capability grounds and is a fairly standard clause in most contracts. Most companies do it if there's no real prospect of the employee coming back to work in a reasonable time frame to do their contracted role. It sounds like if your sister's had a double hip op, there's not much chance of that.
But it could be possible to draw a link between her new role in the laundry, and the collapse of her second hip.
What did the Occy health report turn up? When she had had first op, was was the prognosis then about the second hip? Did you or your sister have meetings with the firm about changing hours/roles/adapting the workplace? did she have time off because of the pain? What do her doctors say? Would be places to start.
How realistic is it to argue that the new role in the laundry as she recovered from her first hip replacement, with new contract was a failure of an employers duty of care to her?
DOC covers things like proper PPE, that working environments are safe, conducted risk assessments, excessive hours, protection of mental and physical health. But many of them are quite broad brush legislative standards Best thing is probably talk to an employment lawyer to begin with?.
Sorry to hear about your sister's situation, and hope the op happens soon.
She has been off work for 12 months and on Thursday will in all likelihood after a comprehensive occupational health process, be dismissed.
Was she paid during the 12 months leave?
Although her contract hours were reduced “to help with her recovery” in reality this was just a reduction in core contract, and each week she worked one or two extra shifts on top.
Was it a signed (amended) contract reflecting the reduction in hours, and are the extra shifts ad-hoc?
Agree with above.
Where most companies go wrong is not following their own process so do make sure they have. You say it has been a "comprehensive occupational health process" but has it followed the process as documented. In my experience its the adherence to process which lets companies down and might give you room to negotiate the best outcome for your sister.
Super thanks everyone. Really helpful advice and sense check. Thanks for your wisdom and kindness.
I'm not sure there's a case here - can't see a link to second hip going due to new role, if the first one went in her old role, and unless there's a reasonable adjustment they could make to move her to something else, I fear it's just very bad luck.
I'd hope I'm wrong, but sometimes shit happens, and it's awful when it's your own.
Really very sorry to hear this
I have some experience of a case against an employer from a family member. As above it’s tougher than the adverts make out. I don’t see much hope here
I think the best outcome will be her regaining mobility post second opp and then finding new work
I would however check how the benefits of the extra shift were dealt with, as above aren’t the sick pay and pension payable on the extra shifts. Have you asked if they would employe her when her mobility returns?
Are there any charities locally that might work with people with her learning difficulties. For example providing work experience as rehabilitation or helping with applying for work
Even if she wins at a tribhnal and I think that's a slim chance unless the employer has properly fouled up the process or there really is an obvious link between the work and the hip issues, which I doubt, compensation isn't likely to be great. Best case is usually 12 months max and usually a lot less than that unless you can prove work caused the issues and then you may be able to claim for future loss of earnings. Unfortunately ill health brings a lot of working lives to an end, it's not the employers fault unless you can show some clear link with the work or conditions. If they are a half decent employer (and it sounds like they may be OK if it's taken 12 months to get to this point and they've used occ health) the best you can really hope form is an ex gratia payment on top of any notice period, threaten them with a tribunal etc. and that will disappear quite quickly.