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

@Itsmetheflamingo thank you very much for your kind words and educating people on those who don’t understand ocd

I work in this field and its standard to consider dismissal proceedings around the time SSP exhausts which is 28 weeks so 7 months is entirely consistent

You should of course take legal advice but it doesn’t sound like unfair dismissal to me

You won’t have a chance, they’ll have had legal advice before making the decision.

A doctor who is prepared to write a letter saying the OH assessment is wrong based on the facts OP sets out here would be a foolish one. The doctor will almost certainly be more qualified in medical terms, but they won't be an expert in how those medical conditions interact with employment requirements, which is OH's role. They won't even know what OP's job entails other than what she tells them. Also, I have never known a GP appointment that would allow for anything like the length and depth of conversation that an OH assessment should entail for a complex case.

So what should they do? If someone tells their manager they have thoughts about harming colleagues with a knife?

7 months is a long time for an employer to be patiently waiting for you to return to work. Have they had to pay for extra staff/temporary workers, has the business likely suffered because you haven’t been there? What about the other workers likely picking up your work?
the employer has seen a report suggesting you aren’t able to return currently. They must be at the end of their tether.

This In the end if you aren't fit to do the job, they need to free up the role to employ someone else.

That’s not why they sacked her and nor should it be. You can’t discriminate against someone with a mental illness by sacking them to protect your staff from harm.

Why can’t they?

It doesn't sound like OH based their assessment on thinking you might act on it, they based it on their belief that you were still so severely affected by the OCD that it wasn't compatible with work?

They’ve made the decision with absolutely the best information available to them at the time. They’ve had you referred to occupational health, who have said you aren’t fit for work, so what can they do? Keeping you working despite what occupational health have said would be wrong and put them at risk later if your health declines.

If the report had said fit for work with some adjustments and a clear timeline you’d be in a different position right now.

By all means check with ACAS and your union, but it doesn’t sound like you have a particularly strong case on first glance unless there’s anything pertinent you’ve missed out. At the end of the day they need someone to do the job and you have been unable to do so for 7 months with no end in sight.

Doctor writes a note when unfit for work so I simply wonder if they would write that OP is fit to return to work - yes based on what she tells them. (Rather than any report is "wrong")

OP make sure you find out how long you have to appeal. I think it might be very short so find out ASAP.

@Winter2020 10 workings days to appeal which I’ll certainly be doing.

@Groundhogday2025 I accept there’s no end in sight but I don’t choose to be mentally ill and mental health recovery is no quick fix

OP, your lawyers will be best placed to advise you, but it will be a long, stressful and costly process. Employment tribunals don’t normally award costs and the waiting time for a hearing is likely to be at least a year. You might of course start proceedings and be able to settle in the meantime.

from what you’ve said it sounds like a complex case, but you’ve been off for an extended time, you have expressed thoughts of harming your colleagues, you are on heavy duty medication, you have said that your OCD is still taking up a lot of your day.

they have an obligation to make reasonable adjustments, but hoping you don’t hurt your colleagues is not a reasonable adjustment, allowing you to be largely unproductive is not reasonable.

i hope you get better soon, it sounds very difficult.

First step.

Call ACAS and get facts, because what you are getting here is a lot of confusion.

That's all you can do right now.

If your employer has followed employment law and taken every necessary step then they may not have a case to answer, but until you know the facts and have spoken to ACAS then there is no way forward anyway.

Spend this weekend documenting a timeline. Gather dates and evidence so that when you speak to Acas Monday, you will be able to give them a clear outline of the facts.

@HermioneWeasley I feel awful for having these thoughts and would cut my arm off no pun intetended to stop them!!! I really punish myself because of it

Yep.

Sounds entirely reasonable.

Just a heads up op as a close friend is pursuing a similar (although different timeframe) type of case - no ‘free half hour’ with solicitor available - he had to pay £900 to get an assessment which just laid out the law and what needed to be proved to meet it. Acas are overwhelmed and it’s weeks to get support for early conciliation. The helpline is hit and miss.

Definitely speak to your union as they will provide legal support.
Maybe look into claiming ESA and PIP in case things don’t go your way. That would cushion the financial blow.

Disability or not, you still have to be able to do the job you were hired to do. It doesn't sound like you have much of a case here.

That’s not the case though is it?

you’re suggesting they’ve labelled OP as dangerous to other colleagues just because she has OCd. That’s discrimination.

you can sack someone with a disability because can’t perform the job, and evidence shows they won’t be able to in a reasonable time frame.

you can’t sack someone with a disability because you have made discriminatory assumptions about their disability, and decided on that basis they can’t work for you

the poster I was responding to suggested the latter was why she had been sacked.

Come off it, OP. You’ve been off for months on end. OC consider you unfit for work. You should accept this and concentrate on your health and recovery.

They have done the right thing. They need to fill your post and it must be immensely frustrating.

The thing is, it's not a moral judgement nor is it about what's best for you as an individual, ultimately. I really feel for you - it's so sad that you're in this position due to your mental health which, as you say, you can't help. Of course you would never choose this. But ultimately dismissal on capability grounds is a pretty cold calculation of whether or not you can do the job.

On the letter you receive outlining your dismissal - it will explicitly state the reason for your dismissal.

Are you saying the reason they have said is “long term sick leave”? Those words?

If there is no end in sight to your current health issues, do you understand why your employer might be reaching the end of the road on how they may be able to support you?

How long had you been working for them for?