Sacked for being off sick due to disability

[fedupandtired]

I work for a medium sized company with approx 60 employees.

I've been off sick due to my disability for a while but have now been declared fit to return to work on a phased return.

Spoke to my managing director. Initially he said he didn't want to be bothered with a phased return and I should stay off until I was properly fit. When I said I was happy to come back full time straight away if he wasn't happy with a phased return he then said, amongst other things, that that wouldn't be fair on the person who'd been covering for me and because of that I'd be sitting at work doing nothing.

I asked him outright if he actually wanted me to return and he went very quiet.

I know I've been off a long time (several months) but I love my job and kept reiterating how keen I was to come back.

Can he do this?

[LaurieFairyCake]

You shouldn't have asked that question, don't ask again.

Do you have to wait to be declared fit to return full time? You said you were declared fit to return on a phased return?

[HermioneWeasley]

Do you definitely have a disability under the equality act?

Do you have any notes of the meetings/discussions?

[NoahVale]

it is better for you to be on phased return i would imagine.

[flowery]

If you're only fit to do a phased return then unless you were talking about a date in the future, it shouldn't be a case of discussing coming back full time, and your boss was right to be reluctant about that. If a doctor has indicated that a person is not fit to return full time it is not sensible to allow them to do so.

It also doesn't sound as though you have been sacked, unless there's more. How did you leave it with him?

If you have a disability then he can't sack you unless he has explored the possibility of making reasonable adjustments to enable you to return, and if your doctor thinks you are fit for a phased return presumably a full return date is fairly imminent, in which case in reality it probably wouldn't be fair to dismiss you at this point.

[Groovee]

I would phone ACAS

[fedupandtired]

Yes I definitely have a disability under the Equality Act.

It was left that we'd have another telephone meeting today after he's had a chance to think things through.

There isn't a great deal more to it although it was a very long conversation going over the same thing - that I wanted to come back but he wasn't keen to accommodate a return. He did actually say he didn't want me back either full or part time.

Regarding me returning on a non phased return I'm sure my GP would issue another Fit Note if it meant I could keep my job.

[flowery]

How long a phased return is your GP suggesting? How long is he/she proposing the phased bit lasts?

I think you're giving your MD far too much leeway. What is he "thinking through?" Either he's happy to accommodate the phased return or he'd rather wait what is presumably a short period of time for a full return?

If he's not taken any steps to try and dismiss you, you shouldn't have brought the subject up and you need to move discussion away from that. Otherwise you risk giving the impression that you think that is genuinely an acceptable option at this point.

[fedupandtired]

My GP didn't make any specific recommendations but suggested part time working for two months (which I'd already tried talking to him about a few weeks ago which he refused to discuss). I was part time for three years and only worked full time for a couple of months.

I don't think he's under the impression that I think dismissal is a realistic option but I take your point that I shouldn't have mentioned it. It was done in the heat of the moment because of him giving the impression that he didn't want me back.

He's refusing to meet with me face to face and refuses to put anything in writing.

[fedupandtired]

Acas will be my next port of call depending on how the phone meeting goes today.

[ShooBeeDooBeeDoo]

You need everything in writing.

Make notes of the phone call as you go along.

[fedupandtired]

He won't put anything in writing nor will he reply to e-mails.

I recorded the phone call yesterday and will do the same today.

[ShooBeeDooBeeDoo]

Sounds like he's hoping to shaft you completely.

Good luck OP. Keep us updated.

[fedupandtired]

Thank you.

Yes I think he is.

[Whatthefucknameisntalreadytake]

Are you in a union? If so they will support you.

[fedupandtired]

No, no Union unfortunately

[MissLegal02]

If you are disabled as per the meaning under the equality act, then your Company should be making reasonable adjustments for you. Allowing you to do a phased return in these circumstances would be an example of such a reasonable adjustment.

You should follow the doctor's recommendation and return part-time. The business will have to accommodate this.It not ideal that your boss is refusing to meet with you face to face as you really need to talk it through with him.

If you boss was to dismiss you because of your disability, or a reason connected to it then you would have strong grounds for a claim for disability discrimination as well as unfair dismissal. Hopefully it won't come to this though and you are allowed back on a phased return.

[Blexie]

Be very careful what you say, both to your boss and to anyone else, especially connected with work. Unscrupulous bosses can use thing you've said else where as ground to get rid of you.

Also, be very clear with your company that your condition is a disability (ie an ongoing condition likely to be of more than 6mths duration). Your gp needs to use this term in any documentation regarding your condition and returning to work.

Having myself been sacked for unacceptable levels of absence which were due to a stress aggravated disability which my company refused to acknowledge, please tread very carefully.

As pp's suggest, speak to ACAS. Try CAB too. If your industry is one which has a strong trade union, try speaking to them, even if you aren't a member due to working for a company which doesn't (currently) acknowledged TU - they can be very helpful.

Have you spoken to your HR about booking a face to face meeting? Or about when they will be booking a medical with the company doctor (as your boss is reluctant to take your gp's advice?!)

The comment about the person covering your job is irrelevant. They can't replace you formally while your on sick leave, so this is either a temp or internal cover. Neither has any bearing on you returning to work, phased or full-time.

Finally, if your gp recommended a phased rtw, stick to it. It's for your benefit, so you don't overdo it and relapse. This is a normal and reasonable means of returning from prolonged absence. If your boss doesn't like that, its medical advice do tough.

Good luck.

[GarlicDoughballsInGlitter]

Are you allowed to record calls? I thought it was only with their permission?

[EBearhug]

Are you allowed to record calls? I thought it was only with their permission?

That's my understanding, too. Still, if you have the recordings, you can make comprehensive notes before deleting them. (I wouldn't delete them till I'd confirmed the legal status and knew I had to.)

[fedupandtired]

I've done a bit of research and what I did read it would appear covert recording of meeting by employees can be used at an employment tribunal although will research a bit more just to double check.

At the very least it enables me to take some comprehensive minutes.

[fedupandtired]

Bit of an update:

Been declared fully fit by my GP but my employer is refusing to have me back and won't take my phone calls. I e-mailed and said I wanted to come back to work today and got an e-mail back saying I wasn't in a position to decide when I can go back to work and I'm to stay off whilst they seek further advice. I've tried e-mailing further but they're ignoring my e-mails now.

The last conversation I had with them they said my job had been moved to another office too far away for me realistically to travel too (plus I'm still waiting to hear from the DVLA if I'm going to lose my driving licence because of my disability). I know however that this is a lie as someone else is doing my job.

I want to keep my job and I want to go back to work but it's looking less and less likely (and my SSP has run out).

[annandale]

What did ACAS say?

[fedupandtired]

Sorry, should have included that.

Acas said if they refuse to have me back then they need to medically suspend me (and pay me). When I e-mailed work to tell them this unsurprisingly I was ignored. Spoke to Acas again who said to send a letter raising a grievance and requesting a meeting within seven days. I e-mailed the letter this morning (couldn't get the printer to work to post it) but again I've had no response. I plan on getting it printed somehow and sending it recorded delivery.

[annandale]

Yes I would do that.

If they are seeking further advice then you should do so too. Some years ago the CAB had an employment law advice service, or even in some cases some free barrister time. I'd be surprised if this still existed, but you never know.