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

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.

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

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.

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 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.

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.

Oh sorry I keep saying 7 months!!

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.

No harm in getting support from the union though

Really? Thats unusual!

Unusual for an absence to span 3 years too usually after a year, if no return then dismissal happens. This isnt a hard rule! Just what has happened everywhere i have worked.

I think they forgot I existed for a couple of years 🤷‍♀️

That happened when I started a new job once. Quite a few long term absences that went on for years. Once sick pay ran out they were forgotten.

Can you apply for ill health retirement and get pensioned off? Definitely apply for PIP and ESA to cushion you financially. As others have said, seek Union advice, ACAS might help and a 30 min free half appointment with a decent solicitor or ring CAB?

What exactly were the intrusive thoughts you told your boss you had?

I guess that depends on who you work for. It is the case where I work. We have a lady with MS and they truly exhausted every angle before letting her go.

@KittyCoo can you explain how your OCD affects your workday, and how much of the time it takes up? That might help us understand why your employer has taken this stance.

Reasonable adjustments is the minimum a company is legally required to do. Good employers will often go above and beyond, especially for a valued employee. I once worked for a company that sent someone home on full pay for two years through a period of ill heath, and contributed to private care.

Which is amazing, but not required and not something every employer can afford.

Reasonable adjustments for a disability are required, but it seems extremely unclear what adjustments could be made for the OP to be able to do her job. I hope the new medication does help, in which case she may be able to return to work, but at this point, she can’t, and they don’t have to keep employing someone medically unfit forever. It is legal to dismiss someone for long term illness.

Or a pilot with mental health problems, like Andreas Lubitz.

Im so sorry you have been through this struggle. Im not really understanding what you are wanting your employer to do though. You are classed as not fit for work. If you did act on the urge to hurt someone in the office that would be a sueable offence for them. I'm really sorry again for your true struggle as that completely would be another struggle. But I truly doubt you can take legal action.

Years ago I read books by Dr Claire Weekes who seemed to be one of the original authors for anxiety self help books, so some ideas and labels must have changed since then, but her idea of not being scared of the physical and mental symptoms, and instead of trying to stop intrusive and physical symptoms of anxiety, and just letting go to do their worst, helps you to realise that once the adrenaline has been used up, the thoughts and symptoms eventually go. Are the OCD thoughts the same as that?
I still find her original books more helpful than more new ones.

What reasonable adjustments could be made for the op to do their job, and yes I am wondering if a man made threats against staff how many women would happily work with them

No, that's what a Polkey reduction is - process accepted as unfair, but would have dismissed anyway, reduction in comp can be as much as 100%. So a pyrrhic victory.

I've defended cases where this has happened - claimant won, but didn't get anything.

This isn't quite a direct threat, and an employer shouldn't be sharing information about a colleague's mental health with their co workers anyway.

Employers have a duty of care to their staff. If they have reason to believe that there's a risk of harm, they can arrange a risk assessment, man or woman.