Unfair dismissal?

[Sibc465]

Long one. Iv been in the hospitality industry for around 16 years. Iv built myself a career out of it and have hit the highest level.

in Oct I decided to take a huge step back and go back into am (assisted manager). Purely due to home life/work balance. This company approached me!

got the job place wasn’t even built yet. Huge huge company. Start dates agreed training location agreed. Due to start January/feb.

dec I fell over my bloody dog and broke my ankle in 3 places. 2 operations 1 week stay in the mayor trauma unit let home. I informed the company and said ovs unfortunately I would need to push back my training start date. All fine pushed back to Feb.

I went to work first week “classroom” training 5 weeks 45 hours per week puls an hours train there and back.

I worked my ass off was in pain daily and relying heavily on my pain meds. (They knew this).

2 weeks in I fell sick. I informed my direct manager on my day off I had physically vomited. And due to the 48hour policy I wouldn’t make work the next day.
the second to last day of my training I fell getting of the train and my ankle the next morning was in agony. I told him fine no problem.

on week 4 of training the last week my area manger offered to reduce my hours to 30 from 45 as it was obvious I was struggling (still in a boot and unable to walk without. I agreed and took a 10k pay decrease for the duration that I would be on these hour.

There was a team day for our last day of training. Two days after my boot was off. I’d been approved the leave but said I would try to do the team day.

i was informed it was ALOT of walking then bowling.. they said it’s ok you can sit in a coffee shop and wait for everyone., my foot would not fit in a shoe at all it wasn’t a mandatory day I didn’t go. He’s again marked it as absent even though I told them I couldn’t.

Fast forward I’m at the restaurant in my own town so no longer traveling. I’m still relaying on pain meds.

my hours are 30 but my shifts are 3-f. No scheduled breaks. I fall sick again 2 days off this time admitted to hospital. Bp on the floor severally dehydrated can’t keep water down.
they re x rayed my ankle as it was very swollen. Shock hairline fracture. Left the next day as was due on the open spoke with my boss who TOLD ME to take the weekend off.
then marked as absent due to been sick!

went to my next two shifts in my boot then had to see my GP due to this hairline to get re referred to the fracture clinic.

GP told me I need to self cert for 7 days then get a fit note. Spoke to boss he encouraged this.

this is where it gets funny. I receive an email to inform me my probation has been extended by 4 weeks. Briefly mentions my absences, informs me he hopes to see an immediate improvement. And he’s offered extra training… my performance has never been questioned and at this stage I’m home with a fit note!

i message to ask about the email and was informed it’s nothing to worry about it’s a generic email.

my 2 week fit note was due to end on the thurs I emailed the Monday to ask to be rotered for the following week. He read ignored. I asked the next day would this be possible? Yes but we need to wait for your fit note to expire and then do a back to work. Ok never have did before but ok.

I go to the meeting Wich is now a probation meeting not back to work and they have terminated my contract! Due to high level of absences. Fine but here’s where I’m pissed off. He said it’s not my ankle! He said it’s down to the sickness not the ankle and it’s 6 days!!

it’s not it’s four days in my pay slips as five so math isn’t mathing. and two periods it’s four days due to the 48hour policy. One of the days hes marked me “sick” was my day off!! The rest is my ankle.

now this is where it gets really interesting I’m one of 4 managers the only female.

one of the other am has had 4 days sick in the five weeks of training. 2 since our site opened. Numerous lates and an AWOL Wich is gross misconduct! But still has a job!! He’s also been let to leave early once 4.5 hour to watch football and another on a vip night where he left a table unhappy and I had to turn it around.

sorry massive massive post. Think I have it all in but before I waste anymore of my time do I have a case I could speak to ACAs ect with?

No you don’t have a case, you’ve only been employed for a handful of months, you need 2 years continuous employment for an unfair dismissal claim. Your sickness is high, and that would have got you sacked from most jobs during your probation to be honest, in those first 2 years they can get rid of you for anything they want really as long as it’s not discrimination, your sickness absence made it easy.

Essentially no.

You've been employed under 2 years, so you'll need to be able to prove you were discriminated against for a protected characteristic. Illness isn't a PC unless it's a disability and a broken ankle wouldn't fit the criteria.

You have had a lot of sick leave and needed a lot of time off in three months, which is unfortunate but they do have a business to run.

Another no. You’ve had a lot of time off. It’s not 4 days, you mention a 7 day self cert then 2 week fit note plus delaying the start of your training, plus other sickness and they’ve already reduced your hours to help you. A back to work meeting is standard practice so not sure why you haven’t heard of it before. It’s also not gender discrimination, you’ve been off sick too much. They have a business to run and need staff in work.
You’ve not got a case as they’re not doing anything unfair and even if they were you don’t have enough service to make a claim.

No. It starts at 2 years. Sadly you had a lot of sickness or bad luck in a short time. I hope your foot is better and you find another job soon x

Heard of it had them just not with this company

Thanks all. Never had this problem before just gutted Instead of using the time to recover as I should have Iv been and worked on a broken ankle and made it worse in the long run.

think my male colleague still having a job with equal sickness including a sore eye. A gross misconduct and extreme lates is clouding my business brain.

It’s a horrible situation… but try to think of the positive, do you want to work for a company like this? If like you say, people aren’t getting pulled up for big things but others are, it’s not going to get better, just worse

Don't compare yourself to colleagues OP, this could be out of character for them, having been a valued employee for years.

How would you feel having to deal with this in your own business?

No in answer to your question.

I disagree with everyone else- with everything you posted here you have a case for sex discrimination which does not require a minimum period of service. Speak to ACAS. Contest the “facts” with your manager (by email) and go through the internal complaints process. You can specifically ask why you are being treated at a disadvantage to your colleague. Keep EVERYTHING in writing. Even phone calls- make notes- date, time, who, what was said etc. this essentially is what I did and helped my case massively
i have been through a sex discrimination case and won I should add.

Nope sorry op I can't see any protected characteristics you could rely upon to avoid the 2 year requirement.
And you don't know anything about conversations had with your male colleague or their intentions.

Tbh, being told to stay at home when you're not fit to work should get marked down as an absence... because it is.

2 years Unless you have been subject to discrimination due to protected characteristic.

Ridiculous to think you have an unfair dismissal case.

As unlucky as it is for you OP, it’s not their problem. It’s not your fault and there was genuine reasons but I can see why they wouldn’t hire you.

@Sibc465 how long has your male colleague been with the company?

We have persistent similar issues in my workplace, but the colleague who takes the absolute piss has been there for about 15 years. Sometimes I wonder if the sex discrimination is so ingrained they don’t even realise it, as all management is male.

I agree.
You may not win a sex discrimination case but it’s well worth a call to ACAS setting out what’s happened. It doesn’t sound as though the termination is due to the broken leg absence, you mentioned they specifically said it was other absences. On that basis you have clearly been treated differently to a male counterpart who (presumably new establishment and so) is also a new hire? Therefore the only difference based on your account is gender.
I certainly would make enquiries with ACAS.

It's terrible luck that you have been so unwell, but your employer is within rights to fail your probation.

An employer can decide that you're not suitable to work for them because of accident/illness; it doesn't have to be that they think you're malingering, just that you're not as available to work as they need you to be. That's why it's irrelevant whether you were sent home or asked to go home - whether it's genuine is immaterial, from their point of view you aren't able to do the job at the time they need you.

I understand it must sting when you've got a good work record up to now, this is just bad timing. It isn't a comment about your job skills or work ethic.

Is it unfair, yes. Is it illegal no.

"Disability" something that affects your ability to do a daily living activity - has lasted or likely to last 12 months or more.
The ankle break you have is likely to affect you for 12 months bearing in mind it's a complex break and now another fracture. Therefore you have a diability discrimination claim. Contact ACAS. You could email your employer and advise... "I am writing to formally address my recent dismissal and the implications regarding my medical condition. As you are aware, I have suffered a broken ankle, and medical advice confirms that the impact on my daily living activities will persist for over a year. Given the substantial and long-term effect of my injury, I am classified as disabled under the Equality Act 2010.
I must emphasize that any dismissal related to my condition, without following due process and ensuring reasonable adjustments, could constitute disability discrimination. I kindly request that you review this matter urgently and consider reinstating me in accordance with legal obligations.
I am open to discussing potential accommodations that would allow me to continue contributing effectively to the organization. Please confirm receipt of this email and advise on the next steps." Or simply sue them if you don't want to go back.

I've worked with a broken foot and pushed it to far and that combined with the hospital not iniatally seeing the fracture ( I had refractured an old break ) and ended up with condition called complex regional pain syndrome which is where my foot gives me extreme pain . It's really not worth making your body a lot worse for a job but I think it may be worth at least having a conversation with ACAS .

Talk of claims for disability and sex discrimination is complete nonsense.

OP has no grounds at all. A claim for unfair dismissal only becomes an option if an employee has been employed for two years. Until the two year point you can be let go without any recourse.

Sorry, OP. You've had some bad luck. All your experience counts for nothing if you're not able to put in the hours for an employer. When they hired you you were capable of doing the job, now you're not. It's as simple as that — nothing personal, no reflection on your ability.

I know, having had a relative who was knocked over by her dog and had precisely the nasty break that you have, pins and boot and all, that it's a long, slow road to recovery. She is still unable to walk any distance without discomfort and it may be that this accident will end up with you needing to change your career at least temporarily. Being on your feet all day in a hospitality role is hard when your body is recovering from a bad trauma. You need to be able to rest your leg as much as possible and do your physiotherapy exercises. I wish you a good recovery and a better job in the future.

Sorry to hear about your accident and subsequent illness. Sounds like you’ve had a tough time and you should probably take this time to heal.

As someone who has successfully taken a case to the employment tribunal I would advise you to pick your battles wisely. Your immune system is weak and legal battles are exhausting

You really don’t have a case for unfair dismissal, sex discrimination case nor disability discrimination. You were treated badly and it sucks and I really feel for you.

My case was sex discrimination with a corresponding criminal police case, by the time it got to the employment tribunal they honestly just wanted to settle. I’m sharing this with you to emphasise to you the strength of the case I had.

If you can’t let this go I recommend sitting down with an employment lawyer for an hour.

Another one that agrees you have no case. Unfortunately it’s been my experience that people with a high degree of absence in their probation period are rarely kept on regardless of the reason . My company would certainly take a view that if absence levels were bad during a period where the employee was supposed to be trying to impress, it would likely be far worse afterwards .
It’s. unfair for you I know but onwards and upwards and hopefully you’ll find something more suitable