AIBU to consider legal action after dismissal for long-term sickness?

Really? Thats unusual!

No harm in getting support from the union though

That’s interesting. I’ve had no contact with OH and almost none with HR in the three years I’ve been off. Suits me to be left alone though.

Oh sorry I keep saying 7 months!!

Again it’s nine months not 7 and occupational health can’t be ignored.

op there is clearly more to this, if this was a final sickness hearing, and as much as you say you disagree you also admit you’re not ready to go back to work fully.

i really don’t think you have a case here, it will be a long and drawn out process, for a very uncertain outcome, the likely hood of compensation is very low, and you won’t get your job back. With the health issues you suffer any long drawn out process may exacerbate it, so I’d think carefully now, as I think you could just cause yourself more pain with no outcome you wish.

Exactly sometimes processes are flexed / changed depending on circumstance.
I wonder what was done when absence first occurred. Also op mentioned asd, so I wonder how that comes into it.

Yeah, obviously we can’t have all info. Even if process wasn’t perfect though it doesn’t mean it was unfair or discriminatory. No process is ever run perfectly after all

Exactly. There is still compensation though. No as much as disability discrimination.
I dont know if process hasnt been followed correctly. Its hard to follow. Also it depends what their absence process says about when to engage with occ health. 7 months is a longtime and I am very surprised occasionally health happened only recently. That makes me think it might be unfair but I dont have all info to make that call.

However, it might be that occ health advice is correct and perhaps employer hasnt followed their process fully. So a tribunal would get them here. A judge would maybe a agree dismissal was correct option but xyz was not followed.

what you might get there in an unfair dismissal is a Polkey deduction ie that even if the process had been fair the outcome would have been the same anyway

Ah okay that changes things slightly. A final hearing, did you attend meetings prior to this? Were you made of outcome each time and that dismissal was a possible outcome?
Its difficult with no foreseeable return as employers have nothing to work with. They have been told the person they are employing wont ever return, or they arent fit to ever return.
I think the outcome is maybe correct. Maybe they havent followed their process fully but that's unclear as you have been a bit vague at times and explaining in more detail at other times. No judgement or negativity. Its hard to fully know as you will have your side, the employer side and what actually happened in-between.
Was the final meeting to communicate an outcome to you or was it a hearing? Thats important. If your union rep was unavailable. They should have maybe rescheduled but if it was unclear when your union rep would be free then ifs okay to still continue. The unions we work with have awful availability and sometimes arent available for weeks and that isnt an option. Employees are offered to bring another companion if they wish.

No they don’t. They are instructed by the company because someone has to pay for them and you don’t ever see employees offering to put their hands in their pockets. They most certainly do not always tell the employers what they want to see, that’s for sure.

The psychiatrist may know more about the employee, but they are not experts in how health conditions are managed in workplaces. That’s OH’s job. And the employees doctors are most certainly not impartial, as their job is to act in their patient’s best interests and advocate for them.

A few things to remember.
If occ health say you arent fit to work.. they would be in breach if they ignored this and you continued working (in whatever capacity).

Having a disability doesn't mean you are untouchable and cant be dismissed, ever. It means that employers must look at reasonable adjustments where necessary and ensure all support options have been considered and where appropriate, exhausted. Dismissal should be last resort.

However, it might be that occ health advice is correct and perhaps employer hasnt followed their process fully. So a tribunal would get them here. A judge would maybe a agree dismissal was correct option but xyz was not followed.

Unless I'm mistaken, I think its strange you visited occ health once in a 7 month period. In my opinion you should have had at least two visits. Usually, 1st says yes this person will be absent for xyz and are exploring medication/dr advice. This person should be rereferred for a follow up. Its unusual their verdict was no return after one visit. Not usual for some illness though. But unusual for mental health where medication, counselling taking place. You could argue this person might be in a better place to return in a few months once these things have had time to take effect. In my experience, occ health is contacted if something is serious and needs urgent attention or if an absence has went longer than 4 weeks (depending on circumstance, of course).

I am also interested what was discussed. Do you disagree with the information they have provided? Do you think it is an accurate picture of what was discussed? I have had occasions where occ health have said something and employee has disagreed and said it has been misinterpreted. We then usually get a 2nd occ health professional involved to be sure.

I work in hr, before anyone says oh no you don't your grammar is bad etc yeah it is, I'm using my phone and hate using such a tiny screen. Not sure why people on mumsnet always think people lie. I would make up a more glamorous job given the option 😊

anyway, Dont let this put you off future employment. Yes past employer can state dismissal and reason for that but they cant provide anything further. Plus, a future employer shouldn't really request this information unless an offer has been made. so they would maybe be accused of discriminating if they were to pull this offer due to absence because of disabilities. However, they would be right to do this in certain circumstances. Ie we made an offer to someone who was dismissed due to past tramua. In parricularly their upbringing in the care system. We work in the care environment. After chatting to this person and getting more info, we pulled offer as our einvironment would have beeb triggering. The person said that!! Mind you, most references dont request this and most orgs dont provide this as it can be a tricky subject. However, I would take time before looking for a job and to get in a better place. Would you perhaps be entitled to any benefits as this is a disability and affecting your day to day? Esp if you have been dismissed.
Sorry that was so long. I can get carried away lol

Also, i have ocd so I am in no way minimising it. It worse with change or it i am feeling anxious about something. I have been late many times to my work as I have been unable to leave the house as I had to keep checking various appliances with the fear a loved one would die if I didnt!! It sounds bonkers but part of you thinks, what if that happens and I could have prevented that?? Luckily I am senior in my role and it is very flexible with lots of working from home. I would have had some very uncomfortable chats if I worked somewhere else. You have my full sympathy. Lots of people wrongly think its about making sure things look neat or tidy. It isnt. Its the intrusive thoughts that come not doing something.

Rubbish

OP nobody can tell you for sure if you can take legal action as we don’t know the full details and the steps your employer has taken. Contact ACAS and I urge you to take legal advice.

Lots of employment solicitors offer a free 30 minute or a low fee 30 minute initial appointment. I took my previous employer to court for disability discrimination. Everyone I told about it, including management and HR at the place during meetings, told me until they were blue in the face I should drop it as I didn’t have a case. I proceeded and ended up settling two days before the tribunal date for a years salary. It was the most stressful period in my life but well worth it.

I think it would be unethical to sue them. You’re clearly a massive cost rather than any benefit to the company.

I think you should ask your union for help with an appeal and for advice about legally challenging your dismissal . there isn’t sufficient information here to answer your question but whilst the amount of time you have had off goes against you , the fact that your union rep was not available at your final meeting , they did not offer work with some of the adjustments you felt you could undertake, even on a trial basis eg part time and if there was any evidence that the nature of your intrusive thoughts played a part in their decision .. there is a lot to examine and question.

I’m sorry some people on here do not understand the nature of ocd intrusive thoughts and how you are not a danger to others . They are not medically qualified .

If the occ h report was written without access to your medical records or has - in your view -misinterpreted them I would definitely talk to your gp about what information could be used to challenge it for the appeal . Look at all your medical records carefully to see if there is anything that could help .

I wish you well in trying to stay in work in a way you can manage - if this is something you feel is possible with the right help . But you would need to have a plan to return (with adjustments) soon .

Some employers use their policies in a tickbox way and if you feel you weren’t given a chance to return in a way that could work for you and your employer - or if you feel the intrusive thoughts were the real reason for dimissal then it’s worth questioning their actions. When I read your post I worried that they just waited out the sick pay period to dismiss you for length of absence when they found out the nature of your intrusive thoughts …. But it’s impossible to tell on here . They may have had genuine job related reasons for not agreeing to a trial with part time hours or they may have had conflicting medical advice . I wish you well in your appeal . It takes a lot of strength to stand up for yourself in these processes .

In most cases they are usually a tick box... but, I have had great advice from them in past and have worked with employee to implement recommendations to ensure they receive correct support.

I have a few questions. This is my line of work.

You mention asd - has employer been made aware of this? If so, how? If they are aware, what things have been taken wrong way?

Occ health - please answer what occ health said. I see these reports frequently. Was it they cant see a return in the foreseeable? Or did they specify in what ways they think a return could happen?

When you were invited to the meeting (when you were dismissed) were you led to believe it was purely about suspension or was it about your future at the company etc.

Did you receive a copy of occ health report?

In what ways does occ health impact your job?

Thank you

That’s good then. I trust no one

They are impartial. They dont work for the company. The company will pay for their service but thats it.

@KittyCoo I have a cousin who just filed a disability discrimination tribunal claim. Clear cut case, union are representing him and funding legal representation. It took 5 months from the employer decision to filing his claim because of ACAS's early conciliation changing to 12 weeks. He now has a preliminary hearing date (which isn't even the main hearing) in 14 months. So likely to be 2.5 years before a judgement is given. His union advised it will cost them 25k in legal fees .

Sharing this so you are fully aware of the huge delays tribunals are facing right now and the type of money involved to be represented. Be really sure its worth it before you do this.

The employer has a duty of care to all employees. What is often lost in this situation is the effect on the colleagues of the staff member on long term sick. They may be totally unaware of their health problems. Most will pick up the slack in the short term but eventually it causes morale issues and if when the OP returns to work her colleagues are still picking up a lot of slack this isn’t ideal.

If I was covering for a colleague who then returned and I was still carrying out their workload I would be looking for another job. As an ex employer, staff who carry other staff eventually get fed up and move on. It can cause a lot of bad feeling if the management are only supporting one member of staff.

The OP is currently unable to carry out her role without a lot of support and allowances. The NHS is currently collapsing due to chronic staff shortages and the need to employ expensive bank staff due to cyclical sick leave. By paying up to six months fully paid sick leave some staff feel it is ok to take that leave as a bit of a sabatical. Once one staff member does it others follow, sometimes because the staff shortages cause burnout, sometimes due to genuine health problems, sometimes because they feel that it is their turn.

We need to have a robust sickness pay and policy but it is open to abuse. I fully understand OPs need to use sickness leave but many of their colleagues will be fed up of the extra work it has involved.

Mental health can be invisible and difficult to understand when you have not experienced it. It can still be difficult to understand even if you are aware of the problems if you have a different work ethic and approach to your mental health. Our own attitude to mental health often dictates the way we cope with it. There is no right or wrong way but just the best way for the individual.

As long as her employer has followed the correct policies then I think she just has to accept that they are well within their rights to dismiss her.

I'm really sorry you're going through this. I know it sounds like a platitude but I'm sure things will get better. In the meantime, do speak to your Union and see what kind of financial settlement you could get (or if legal action is realistic).

I'm sure many of us wish you all the best. And you have nothing to be ashamed of- AIBU can be quite a brutal place, I'm afraid.

Plus, they work for the company so they are not impartial