Employment Tribunal

[MarillStreep]

What’s my chance of winning Employment Tribunal case?

Was employed there for three years. (Unfair dismissal, failure to make reasonable adjustments and discrimination arising from disability)

Was sacked under employer’s capability procedure due to ten sickness absences over three years. Seven of those sickness absences were related to my disabilities, which the employer knew about.

Was taken through capability procedure because of my disability related sickness absences. If I did not suffer with these disabilities, I would not have been sacked.

Employer refused to implement my reasonable adjustment request twice. Stating that every employee had to be treated the same. The reasonable adjustment would have prevented my dismissal.

I had one OH assessment throughout my employment. At the time of my dismissal, it was a year old. I was not offered another OH assessment after this one.

I was never asked if my boss could contact my GP for a medical report or for them to access my medical records. However, the employer have said in their Grounds of Resistance that I “failed to provide medical evidence”, but they never asked me for medical evidence…

Thank you. I’m not sure how to word my Subject Access Request because I don’t know what to ask for!

I thought about doing another one (I’ve done one previously asking for correspondence I’ve sent the employer about my reasonable adjustment requests etc.)

I think this really depends on what the reasonable adjustments were- this can be so varied
For example if you worked in, say, a call centre and the nature of your disability meant you were unable work answer calls, it wouldnt be feasible for this adjustment to be made
The recommendations made by OH are just that, recommendations, and they have to work for the business as well as the individual
Capability hearings are to establish if you are in fact capable of performing the role needed

Thanks. I was not aware of any concerns about my ability to perform my role. My feedback was always excellent and my sickness absences were never raised in my 1:1s.

I talked about my reasonable adjustment requests further up the thread. I worked in education.

Did OH have access to your medical records and details of the other disability at the time of making their recommendations. If not, the reasonable adjustments could not of taken this into account. It may therefore be too late to expect a judgement based upon this. What outcome are you seeking?

I don’t believe so. But I asked for the reasonable adjustments the two times after my OH assessment had taken place. This was a year before my dismissal.

But all relevant times, that were aware of both of my disabilities (thankfully, I can prove this)

I’m seeking compensation, a declaration and recommendations (if possible)

What was the total number of days absent?
Were you employed work 5 days per week?
There's been a recent ruling for a cleaner, I think in nhs, try and find it, it sounds quite similar.

compensation for what? Can you not get another job?

If you have a strong case they’re likely to offer a settlement before the hearing

Yes claimants acting in person often don't realise that the amount they are offered gives a very good indication of the strength of their claim. Particularly with public sector employers

Were the three other (non disability related) absences sufficient for them to take action under their absence policy? How many days are we talking about.

Thanks. They’ve told me that they’re “very interested” in settling, but they haven’t sent me an offer

I had three absences, which weren’t disability related.

2 days (2022)
1 day (2023)
5 days (2023)

Due to how my absences were spaced, I doubt that I’d have been subjected to a Stage 1 meeting if it weren’t for my disability-related absences.

No one here can possibly know.

Engage a lawyer, give them all the information and ask for a view on prospects.

Total number of days were seventeen or eighteen over the course of 3 years.

Z Kitching v NHS? Yes, I’ve seen that.

I was employed 5 days a week, yes.

I know that, of course.

The second time I asked for RA, I asked for my disability-related absences to be group together. Again, they refused stating they had to treat everyone the same.

I told them that I found the previous OH assessment to be helpful, but I was not offered another one. They dismissed me later on that day.

I had no idea I was allowed to request a OH assessment 🙁

Thank you, I’ll DM you now

"Thanks. I know they’re complex, but I do know the legal tests. They’ve conceded one of my disabilities, but not the other. Thankfully, I can prove that I’m a disabled person at all relevant times and I can also prove that they knew at all relevant times too.

I don’t have a solicitor, but I have a union representing me"

@MarillStreep - they will almost certainly have legal representation so you will be at a disadvantage. You will need medical evidence to persuade the tribunal that you have a disability that you claim they based discrimination on. The existence of a disability will usually be determined at a pre trial hearing. Best to aim to have this done as early as possible so you can focus on which claims are likely to succeed.

You should also consider what remedy you would receive if you were successful and use that to negotiate a settlement. The tribunal does publish this information on an annual basis. Be aware that they may argue for a "polky deduction".

Many people go through incredibly traumatic and public tribunals only to be unsuccessful or to gain a few thousand in an award. A settlement will usually be a better result for everyone

I suspect a lot of their response will depend on what your reasonable adjustment requests were, and if they were reasonable for the business to support.

For example, if you were unable to climb stairs you could reasonably request that your classes be timetabled in ground floor classrooms, maybe in the same room. A request to have a lift installed would be an unreasonable request.
Likewise, if you were employed as a PE teacher but were physically unable to demonstrate methods or to get across a field, then a request to have a TA do the demonstrating or requesting only sports-hall based classes might be seen as unreasonable due to staffing levels and cost, though you could be re-assigned if possible to a different subject.

Employers only have to consider reasonable requests. Without knowing what your disability is, or what reasonable adjustment you asked for, it's not really possible for anyone to comment on likely outcome.

Although 17 days absence over 3 years because of a disability sounds dreadfully inflexible of them.

Thank you. They have conceded one my disabilities, but not the other. The judge said my second disability will be dealt with at the final hearing

"Thanks. I was not aware of any concerns about my ability to perform my role. My feedback was always excellent and my sickness absences were never raised in my 1:1s.

I talked about my reasonable adjustment requests further up the thread. I worked in education."

@MarillStreep - why do they say they dismissed you? Was it absences? Was there no warning or process?

As others have stated, they can dismiss you for capability reasons even if you are off or can't attend work due to a disability. They do have to behave reasonably and consider reasonable adjustments.

I would submit a SAR to request all communication between XYZ members of staff between dates XX containing your name on any company systems emails hand written notes company phones.

Maybe add “regarding sickness” if that’s the only information you need but I would want to see if they had spoken about any performance issues.

I was dismissed due to my sickness absences, which was set out in my dismissal letter and meeting minutes.

I had been at work for three weeks since my last absence too, so it was not as if I was not able to work!!