Job share given my role after sick leave for cancer treatment

I have been on sick leave for nearly 10 months due to initially stress and anxiety and then a cancer diagnosis. I have now finished treatment and am due to return to work soon. My employer has been in contact with me twice whilst I’ve been off to see how I am. Before going off I was part of a job share. However for the last 12 months of my employment my colleague had gone off on maternity leave and I was left to do the job on my own. This led to a mental breakdown and whilst off work due to stress and anxiety came my diagnosis of cancer. Fast forward 11 months and upon my health improving and my date to return to work approaching my boss asked me to attend for a meeting about my return. At this meeting my boss opened the dialogue by saying she is mindful that my job role contributed to my initial stress and that she had to consider this in my returning to work. She said my job share role was no longer available as my job share had been able to manage the job on her own whilst I was off and, therefore, the role could be done in fewer hours and she would be retaining that role. My boss then offered me another role in a completely different sector and for which I would require training. My boss said I should view this as a challenge! I wasn’t looking for a challenge and said I did not want to do the alternative role in case it might be detrimental to my health. I feel that there may have been preferential treatment given to my job share. My boss says this is not the case. She said she would have to rethink things. I have little doubt that she will come back with a more favourable job role. However, I personally now feel it is unfair my colleague has been automatically chosen as the one to retain the role. Even if she presented me with an alternative suitable role I feel I could not accept on the basis of how she has made me feel and the way in which this has been dealt with. Also the thought of returning to work doing something completely different and my colleagues asking ‘why’ leads me to feel utterly embarrassed. Do I have any grounds for any kind of action? I now feel immense stress, worry and anxiety waiting for her to get back to me.

Job Share

 

I am sorry to hear you have been through a difficult time recently, and your employer’s comments have certainly not been as compassionate or supportive as I would expect.

It appears you may have a personal injury claim against the organisation on the basis that your breakdown may have been caused by the excessive amount of work that you were required to do by your employer. However, there are many other factors to consider and this is not my field of expertise, so I would suggest that you consider speaking to a solicitor who deals with such matters.

In respect of employment law, if you do not wish to return to work you may have claims for constructive dismissal and/or disability discrimination.

Constructive dismissal occurs when the employer has fundamentally breached the employment contract and the trust and confidence between you and them, and you resign in response. The breach can occur either as one significant action or omission taken by the employer, or by a series of acts followed by a “final straw” act. In summary, constructive dismissal is where your employer has behaved so unreasonably towards you that you could not be expected to put up with it.

You have given many examples of unreasonable conduct on the part of your employer, which would certainly support a constructive dismissal claim. These include the company’s requirement that you perform a significant and excessive workload without adequate support, eliminating your role whilst you were on sick leave, failing to consult with you, failing to give you the chance to do the remaining job and instead giving it to your colleague, and offering you an unsuitable role. In order to bring a claim of constructive dismissal you would first need to resign.

It also appears that your employer’s actions since you went off on sickness absence have been connected to your ill health. Under the Equality Act 2010, cancer is a disability for legal purposes which gives you certain protections under employment law including the right not to be treated less favourably because of your disability or for something which arises out of it (e.g. sickness absence). If, as it appears, the only reason your duties were taken on by your colleague, and your role removed and you were not given the chance to do the job is because you were absent due to the disability, then this may give rise to a claim of disability discrimination

I understand you are considering your options about how to proceed. One option is to resign and claim constructive dismissal and disability discrimination. However, before doing so, I suggest you take more detailed advice from a solicitor where all the facts and circumstances can be looked at further, and you will be better placed to take a fully informed decision.

If you would rather not resign at this point, as an alternative, you could raise a formal grievance regarding potential constructive dismissal and disability discrimination. Your grievance could also include your belief that your role has been made redundant, that the company has failed to follow a fair and lawful redundancy process, has unfairly selected you and not given you the chance to be considered for the remaining role and not offered you a redundancy payment.

You could use the grievance process as an opportunity to negotiate an amicable exit package, via a settlement agreement, with the company which could include compensation for discrimination and loss of your employment.

 



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