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Employment Law

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Veale Wasborough Vizards , 20 MAR 2017

Is there a duty to raise the prospect of ill-health retirement with an employee?

Is there a duty to raise the prospect of ill-health retirement with an employee?
Charlotte Williams
Solicitor,
Veale Wasbrough Vizards

Following the termination of her employment on the grounds of redundancy, Dr G was granted her NHS pension.


However, she would have been financially better off had she applied whilst in active service, rather than post-termination. She complained to the Pensions Ombudsman that her employer ought to have highlighted the option of ill-health retirement to her.

Background

Dr G was signed off work for a significant period with anxiety and depression. Following a medical assessment, it was determined she could return to work with some reasonable adjustments.

However, Dr G raised a grievance concerning purported differences to her role following a TUPE transfer to her employer, Greater Manchester Shared Services (Manchester).

In meeting with her to discuss her grievance, Manchester discussed two options with Dr G: either she could return to work with reasonable adjustments in place, or she could be made redundant. Dr G elected to be made redundant and was accordingly dismissed.


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The Pension Ombudsman's Decision

In its determination, the Pension Ombudsman considered all of the facts and particularly took into account the following:

  • Dr G choose to be made redundant and, in signing the application form for voluntary redundancy, she confirmed she understood that taking voluntary redundancy could affect her pension entitlement.
  • In order to be eligible to for ill-health retirement under Manchester's sickness absence policy, Dr G would have needed to be:
- incapable of returning to her role with reasonable adjustments
- unsuitable for temporary or permanent redeployment
- unable to provide a return to work date within four weeks of the expiry of sick pay

At the time of her dismissal, none of this criteria had been met.

On the facts, therefore, the Pension Ombudsman determined there was no obligation on Manchester to raise the question of ill-health retirement with Dr G.

Best Practice

The outcome of this matter was fact specific. It is clear from the Pension Ombudsman's decision, however, that Manchester's position was helped by the two factors noted above. In particular, it would seem that, had Dr G been eligible for ill-health retirement at the time of her dismissal, the outcome may very well have been different. Manchester's position was assisted by the detail in its sickness absence policy.

Whilst employers may not be under an obligation to raise the issue of ill-health retirement, we recommend employees are informed where decisions may have an impact on their pensions position in order that the onus is on them to take further advice.