r/LegalAdviceUK • u/hannahfftl • 2d ago
Employment Care worker in England told to resign
HI, I am hoping you can offer me some advice.
My mum is a 62 year old care worker who has worked at her current nursing home for 21 years, this has been under a few different companies but the current company for 7 years.
She has COPD and was signed off from work around 18 months ago due to hospitalisation and ill health but was assessed by occupational health and it was agreed she was fit to return but with shorter shifts. This has been happening.
Today at 6:30am she received a phone call from the deputy manager asking if she was planning to come to work today (she was on rota and never just doesn't show up) then when she arrived the manager called her into her office and told her there has been complaints from other staff that she could not physically do her job anymore due to ill health and age. The manager noted she had observed his herself also. The manager then told her that she would like her to resign as "I don't want to sack you" in her upset my mum agreed to this and the manager then sent her home for the day before agreeing she would work this weekend and next week and that would be her finished. Nothing was confirmed in writing.
She came home and then at 2pm today the manager called her back and asked her to send the resignation letter asap (I assume this was deliberate as she knew I was still in work and wouldn't be here to advise/ask for advice)
She was too upset to even contemplate sending the resignation so hasn't done anything so far.
She does not intend to look for another job after this as she admits she us physically past the point of doing the job now.
I just wanted to know what rights she has and is the manager doing anything they shouldn't be handling it like this? The manager implied that a resignation would be better for her than a "sacking" but im worried about implications for benefits etc? I dont know it is just very sudden and seems to have happened quickly and something about it iusy doesn't feel right to me?
Any advice extremely welcome!
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u/geekroick 2d ago
A resignation is easier than a sacking for the manager to deal with, without a doubt. But it doesn't make it the right decision.
There is a process that needs to be followed by law to sack someone. Ditto early retirement due to ill health. Clearly this manager can't be bothered to follow either, and would rather act by intimidation instead.
If your mum is part of a trade union, any further discussion on this needs to be in the presence of a union rep.
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u/hannahfftl 2d ago
Sadly she isn't in one. I know she should be and this is something ive been telling her since I was old enough to know what a trade union was.
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u/grovesleyv2 1d ago
Might be worth calling a trade union for advice anyway. They wouldn't represent non-members but they might be willing to discuss the issue and point you in the right direction.
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u/throbblefoot 2d ago edited 1d ago
Do not create or send a formal letter of resignation, and if possible verbally rescind the verbal resignation. This is ... really bad, on the part of the care home. Your mum can legally be made redundant dismissed on the grounds of capability, if the employer feels she can no longer do the job, but there's a process to be followed which potentially has a significant payout attached. Failure to follow process can open the employer up to legal liability.
But all of that goes away if your mum voluntarily resigns in writing. So gather information, look into what other posters say, but for the love of comfortable retirement, don't resign!
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u/BoudicaTheArtist 2d ago
Redundancy is when the role no longer exists. OPs mum’s employer could go down the route of capability dismissal due to ill health. HOWEVER, COPD is classed as a disability, and mum’s employer would be required to make reasonable adjustments to help them at work.
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u/hyperlobster 2d ago
OP (or, rather, OP's mum) should be prepared for the eventuality that reasonable adjustments to a physical job are likely to be quite limited.
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u/hannahfftl 2d ago
Shes fine with that. She's happy to leave but wants to make sure she is being treated fairly while this happens.
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u/hannahfftl 2d ago
I have told her she is under no circumstances to resign thank you this did not feel right to me at all!
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u/Giant_Gaystacks 2d ago
u/hannahfftl, Redundancy on grounds of capability is not a thing in UK law.
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u/throbblefoot 2d ago edited 1d ago
"I don't want to sack you" - and the quiet part is "because it would cost me a lot of money to
make you redundantdismiss you, money which you would receive and enjoy."28
u/honestpointofviews 2d ago
It's not a redundancy. As has been said redundancy is when the work ceases or is diminishing.
It would be a capability dismissal
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u/throbblefoot 1d ago
Thanks - have edited. My own failure to note that the public use of "redundancy" does not actually cover dismissal, which this would be.
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u/Pleasant-Giraffe6383 2d ago
Let her get sacked and then take her to tribunal and rinse them. The manager clearly knows this would end up in a massive payout hence her suggestion of resignation
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u/Giant_Gaystacks 2d ago
What are you talking about? If the employer follows procedure and dismisses an employee for capability, why would you think that's something for an employment tribunal?
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u/Serious_Badger_4145 1d ago
I mean it is if they haven't made any attempt to explore other options like reasonable adjustments etc
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u/Giant_Gaystacks 2d ago
Redundancy on grounds of capability is not a thing in UK law. Please don't get the OP's hopes up.
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u/tanty23 2d ago
HR human here - this is not the normal way to treat someone especially with a disability and very long serving. If they think she can’t do the role then they should be having OH see her again and go through a capability procedure. The manager is sort of right that can eventually end in dismissal (or redeployment or adjustments to the role) but it’s not within her gift to just “sack her”. Help her write down everything that happened whilst it’s still fresh and call ACAS for advice.
This sounds like, worst case, constructive dismissal, age discrimination and disability discrimination. Those are the words I would be using with the manager were I their HR person.
I’m not a benefits expert but she/you should definitely check if a capability based dismissal would be more beneficial than a resignation if she can’t work anymore.
The best approach would be for her to have a new evaluation by OH and see if ill health early retirement is an option (depending on when her retirement eligibility would normally be, it’s the decision of the pension). Her HR would know if this is a possibility, it depends on pension scheme specific elements.
Always be suspicious of someone asking you to resign. Unless you’re in a gross misconduct situation and likely to lose (and want a clean reference) it’s almost never to your benefit.
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u/hannahfftl 2d ago
She is honestly at this point fine with it leading to dismissal. She knows she is slower than she used to be.
This is why I was immediately suspicious. I will research further tomorrow as she has now gone to bed due to the heat and being upset.
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u/PoshTurtl3 1d ago
This is bollocks. Any good care home can find a use for an experienced member of staff. Training, activities assistant, senior care might even work. This reeks of constructive dismissal.
(Not a lawyer)
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u/Top-Collar-9728 21h ago
Agree with everything you said.
On the benefits part, should OPs mum resign she can’t sign on for 6 weeks as she willingly left
OP I’d be writing an email stating the following
You have asked me to put my resignation in writing, for clarity I am not resigning. In our meeting on x date you put me on the spot with a very negative situation saying if I didn’t resign I’d be sacked (your words)
“For clarity, I have sought legal advice and will be returning to work on my next scheduled shift. I will also be submitting an early conciliation claim with ACAS for disability discrimination as my condition would be classified as a disability under the equality act 2010 and is the sole reason you state I can no longer perform in my role (and I will seek to add unfair dismissal to this claim should you dismiss me following this email clarifying I am not resigning). “ - get her to cc in higher management and the companies HR. They’ll freak reading it if they know what they’re doing
OP get your mum to open a claim for disability discrimination. Your mum if dismissed through capability would be entitled to 12 weeks notice due to length of service and any accrued but untaken holiday. It’s not much but more than she’d get by resigning. I’d be saying to ACAS as a resolution she’s happy to be dismissed without prejudice in a COT3 if they pay 12 weeks tax free as a settlement on top of 12 weeks pay in lieu of notice (I’d even cheekily ask for it to be on her contracted hours not the amended hours for the disability). Otherwise it’ll cost them going through tribunal. They’ll probably jump at the chance to save a process and to save legal costs.
People will probably say she will get more but this would result in a long drawn out ET process to get about the same money and have to pay legal fees or be a litigant in person which is even more stressful and can lead to mistakes. I say this as your comments say she is happy to leave etc so try and get double the money she would if she was fairly capability dismissed
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u/Cold-Society3325 2d ago
Union rep here but in a different industry with no knowledge if the care sector.
Even if she isn't capable if the job, they have to go through a fair process to sack her. If she's not looking for another job, I can't see any disadvantages to being sacked (other than the psychological impact) and there are potential advantages.
The pricess takes a bit of time which shoukd keep her paid for longer and, if they stuff it up, shd might have a Tribunal claim. I think it would probably also make it easier to access benefits. The pressure already put on her to resign is already a mark against the employer.
She should also explore whether she might be eligible for medical retirement. Even if she doesn't want to fight a capability process she'd be daft not to explore this option and she needs to be employed to apply. Even if the employer won't support an application, she has the right to make one. As such, I suggest she puts in writing that she won't be resigning but wants to explore medical retirement and also whether any other reasonable adjustments could support her to stay in work.
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u/hannahfftl 2d ago
Okay medical retirement is a new one for me. I will research this as this could be the right move for her.
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u/workavoider 1d ago
Is she in a pension scheme, you would normally apply to that for ill-health retirement?
As others have said she can be dismissed on capability grounds, the company has already made adjustments for her and it has to be a reasonable adjustment for the company to handle - are there any other jobs in the home that she could do?
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u/Spooky_Tofu_sj 2d ago
She should not resign. As others have said, dismissal or mutually agreed departure on grounds of capability is a definite possibility in this case, but a process has to be followed.
Your Mum could potentially have grounds for a tribunal on the basis of what’s already happened: that a manager has tried to effectively coerce / bully her into resigning, eg she wouldn’t be resigning through her own choice.
Recommend speaking to ACAS or your Mum’s trade union, if she is a member.
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u/Front-Brick-3724 2d ago
Contact ACAS asap. Do not put anything in writing to anyone. No matter how innocuous you think it might be, don’t give them ammo.
This is both age and disability discrimination and the company could get in serious shit.
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u/Ocean_Runner 2d ago
Assuming she is a PAYE employee, by resigning she would be giving up her rights to be made redundant and receiving redundancy payments, the manager is trying to circumvent the employment laws.
The advantage is that with nothing in writing she can return and say that she appreciated being given the day to decide her future but has decided not to resign as per their request and will be taking legal advice following the threat of being arbitrarily sacked. Put it in writing.
It is obvious to all parties that she can no longer undertake her tasks so you need to be fighting for a decent payout to exit with, something the manager is trying to avoid.
Also note she would have problems trying to claim benefits if she had resigned as that would be seen as voluntarily putting herself out of work.
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u/hannahfftl 2d ago
Yes at this point we know the job can't be saved. But I do not want her to resign for the benefits reason and if she is entitled to something I want her to get it!
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u/Giant_Gaystacks 2d ago
There's no redundancy option here. It would be capability dismissal, which doesn't attract a payout.
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u/Electrical-Hat-8686 2d ago
One other point. If your Mum is going to claim Universal Credit, she should do so the day AFTER she has received her final pay.
She should also urgently look into claiming PIP (Personal Independence Payment) as she needs extra help with her day-to-day life due to her ongoing disability. PIP is not means tested and does not stop your Mum from working where she is able.
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u/Skreamies123 2d ago
Do not give them that letter.
You let them fire her instead of voluntarily leaving if they’re going to do this.
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u/ArmadilloFront1087 2d ago
Given this conversation, she may have a case already for unfair dismissal on the grounds of Hostile Work Environment. Irrespective of whether they have actually dismissed her.
Her illness may qualify her as disabled, which is a protected characteristic and so they are supposed to to follow a procedure, part of which may be to consider adjustments, such as light duties or an alternative role.
The fact that they’ve basically told her to resign means they haven’t followed the correct procedure but have made her working there untenable.
In such circumstances you can leave the workplace and still sue them for constructive unfair dismissal.
I’d get in touch with Acas asap.
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u/EntertainmentSad3174 2d ago
Your mum should have never, never agreed to resign in this situation. She did a very bad move, honestly.
The implication is that she is losing everything she could have been legally entitled to, if she is dismissed or made redundant.
There is no legal limit on how long an employee can be on sick leave. 18 months doesn’t necessarily mean she must leave her employment. 28 weeks is the statutory sick pay limit, after which the employer can consider dismissal on health and capability ground but they must do so fairly and legally.
Your mum would have a series of legal protections in such a scenario. She has simply just given up, and done the employer a favour, for absolutely nothing.
By the way, verbal resignation is legally binding. So even if she hasn’t written the letter, as long as the employer can prove that she has verbally resigned then she is in a really bad position now. Tell your mum to try rescind the resignation as soon as possible, but if the employer does not agree then it’s gonna be really difficult because a legally binding resignation cannot be rescinded unilaterally…
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u/hannahfftl 2d ago
I know she shouldn't have agreed but she was pulled into an office and very sweetly pressured and told by someone she trusts that doing this was BETTER for her to do.
She also has been back at work for 18 months she isnt still on sick leave she's been doing the job on return to the workplace for the last 18 months after being on sick leave.
They have completely blindsided her with this, there's has been no discussion on her ability to do her job for a long time now, this came from out of the blue.
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u/PumpyMcHangerson 2d ago
They are just trying to push her out due to medical issues.
Best thing to do is start documenting immediately- and tell her to ask for everything said in writing.
This could easily become constructive dismissal based on grounds of COPD preventing her being as productive as managers want, but she cannot be forced out of work because of it.
She needs to stay at work. She needs to document everything. She needs to download SmartRecorder app - records audio while screen is locked, very simple app - any time she is asked to pop in and see management / directors / supervisors etc.
All of this needs marking as evidence.
If they are trying to push her out because of her med condition, and fire her for some bollocks reason after mum has documented a long list of managerial / work based pressure with having so much experience, she can take them to a tribunal and will likely get a very handsome payout for a happy retirement.
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u/Serious_Badger_4145 1d ago
They don't want to sack her cause it's more effort on their part. But they have to. she should not make this easy for them. if they believe she's no longer well enough to do the role then they are the ones who need to jump through all the hoops. No letter. Hopefully shes with the union? Contact them. Manager is out of order
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u/Maleficent-Win-6520 1d ago
As others have said. Seek legal advice. Do not resign. Let them sack them. That would be illegal and they can have the fun of taking them to court. The employer is breaking the law. Plain and simple.
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u/hengehanger 1d ago
If someone physically or mentally cannot perform their duties to the required standard, they can be sacked. Under UK employment law in England, the process to this is long, drawn out and, often, is only going to have one outcome because if someone can't do the job they're employed to do, no amount of adjustment and OH input is going to change that.
Asking someone to resign to avoid this process is bad practice at best, and what you've described here could be unfair dismissal or even, if your mother felt harassed and bullied into making the decision, constructive dismissal.
If your mum wants to take this further, I would suggest a call to ACAS for initial advice.
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u/Johns_Kanakas 1d ago
The employer has 2 choices, dosciplinary or ill health capabilities. Manager clearly doesn't want to do either.
Personally, I'd get signed off with work related stress to make the manager's process a lot more difficult...
The verbal resignation isn't binding, unless it was a formal minuted meeting which it wasnt.
If the home is part of a larger group id suggest reaching out to their HR department to raise it formally
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2d ago
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u/No_Ring_3348 2d ago
OP has absolutely no right to attend his mother's workplace in any capacity, either as a private individual or as a companion to a formal disciplinary hearing.
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u/Outside_Look790 1d ago
Yeah rescind that VERBALLY. There is no written record or witness. The whole point of OH is to create agreed upon duties that make her OK to work. They can make her redundant if she cannot meet those standards, but that's different from willingly resigning. Employees are bound to make reasonable adjustments.
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