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

[KittyCoo]

I’ve been dismissed from my job today due to long term sickness since August last year. I have crohns, ASD, and very severe OCD. I have intrusive thoughts and last summer I declared these to my boss who completely misunderstood me and was worried I’d act on these thoughts shock I told her they caused me immense distress.

Last month, I was confident I’d be able to return to work as I’m finally having CBT and on the right medication, now on an SSRI combined with an anti psychotic. My boss was supporting my return. But then a week later she decided to place me on medical suspension without any prior warning because occ health deemed me unfit to work due to my OCD still taking up a lot of my day. I then fed this back to my line manager saying I’ll beat this decision as in prove occ health wrong and that I am indeed fit for work. She arranged a meeting with me to discuss suspension and she knew my union rep was on annual leave but decided to go ahead with it anyway!!!

They dismissed me due to long term sickness and not taking into account what’s working well with my mental health!! I’m looking at finding a solicitor as I believe this is unfair dismissal due to my disabilities under the Equality Act 2010. I’ve contacted a few and had a few quotes back.

AIBU by wanting to take legal action and sue them because my OCD is deliberating and because of my ASD I have different communication styles that they’ve completely misunderstood. Do you think this is unfair dismissal ?

im so traumatised by it all and im worried ill be made homeless and have my property repossessed as I’ll have no money and won’t be able to find a future job

I’ve started to dislike the term “educate yourself” as it gets used as a guilt tripping mike drop..
what it really means, generally seems to be is- “you need to come to my way of thinking, your own opinion is clearly wrong you big fool!

Educating yourself in this instance would serve you well though.

In this instance, what it means is that people who think intrusive thoughts are indicative of risk, need to inform themselves better because they are factually incorrect. In OCD, the intrusive thoughts or urges are distressing to the person and they are ego dystonic. So yes, sometimes people have opinions based on ignorance and they do need to inform themselves. It's got nothing to do with my opinion.

Plus in this case, what they need to do is take advice from occupational health, which is what they’ve done.

A tribunal won’t say oh I’d have done x if I was an employer, got a report from the psychiatrist etc. What they will look at is whether a reasonable employer would have done what OP’s employer did, and if so, then fine. The fact that another employer may not have dismissed the employee or obtained different evidence does not mean there was anything wrong with what the employer did. More than one way to skin a cat, etc

To be fair, an Occ Health doctor is usually a medical doctor and may have very limited knowledge around mental health and definitely around specific anxiety disorders.

Not sure the intrusive thoughts are necessarily the basis of the employers concerns though. OP has said it takes up considerable time. That's time she's not doing the job she is there and paid to do. That is more likely the issue. Employers don't pay people just to be nice.

OP needs to take legal advice from someone who can view the reasons given for her dismissal.

@PhoebeBuffay1234 @bigboykitty thank you once again for your kind words, I really appreciate your understanding at this time

@HoskinsChoice just because it’s gone on my record and no one will want me because of it. They’ve really knocked my confidence 😢

i don’t know why I bother after this 😢😢

I'm sorry you're having such a shit time of it OP, that constellation of illnesses must be a heavy burden to bear.

Legal action, though? Things have become very litigious in recent years, and I'm not sure it helps anyone in the end. Sure, you could kick up a fuss. But in the same spirit, they could kick up a fuss about your "threats".

It's a mismatch of expectations. Save your money and focus on getting well.

It really is hard. I didn’t have a long period of sick but lots of single days off and ended up in a capability meeting for it. Endometriosis and was needing a day off every 2-3 weeks at the worst point

Your previous employer can disclose the amount of sick leave you took, and that they dismissed you for long term sickness, but they cannot disclose details of your medical condition.

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

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.

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.

@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.

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

That’s good then. I trust no one

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

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.

@MrsBrendaFarfetched yes I told them about my ASD at interview and they asked me about reasonable adjustments.

Occ health said not fit with no foreseeable return which I didn’t agree with.

it was a final sickness hearing so under the illusion that my future and vague reasons why I was suspended would be discussed

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 .

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

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.

Rubbish

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.

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.