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…

It's absolutely not unreasonable to ask that disability absences are separate to normal sickness absences.
This is exactly what my employer has in place for me (suggested by HR manager) who thought it unfair to group them. It's not unreasonable to think they shouldn't be grouped, besides you're absences over 3 years shouldn't have triggered regardless of being grouped.
I think 17/18 days totalling over a 3 year period isn't a big issues especially when disability's are at play.

Fingers crossed for you OP I hope you take them to the cleaners & shame them into never doing this again.

"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."

@MarillStreep - so 10 days absent in 2 years which were disability related in addition to the above?

I would suggest "sickness and absence.". However given they can take 28+days to respond so will it be in time? What "declarations and recommendations" are you hoping for?

Yes, that sounds about right. I was employed by them for three years

"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!!"

@MarillStreep

Did they give you warnings and go through a process? Capability dismissal doesn't mean you can do the job at all - it can just mean that you can't do it to a certain standard (eg frequent absences would certainly impact business needs). They do need to act reasonably but the fact you attended work after frequent absences isn't evidence that they haven't dismissed you for capability reasons.

I think you should get proper professional legal advice and attempt a settlement. Does your union not offer this?

A declaration to acknowledge my rights were breached, so I can show potential employers. This would bring about some personal closure for me too.

Any recommendations which the tribunal can provide the respondent, to ensure that the employer will not be able to subject any other employee to the same treatment.

Your union will advise you

You’re better off addressing these questions to your union, although if I were you I’d be heavily tempted to settle - a guaranteed outcome without the stress of a tribunal.

A declaration to acknowledge my rights were breached, so I can show potential employers. This would bring about some personal closure for me too.

Why would you bring showing potential employers your tribunal outcome?

"A declaration to acknowledge my rights were breached, so I can show potential employers."

@MarillStreep you do not want to show something like that to potential employers. Even a successful tribunal claim will put almost all employers off. Not saying that's right but it's really.

God don't do that. New employers wont touch you with a bargepole.

Yikes! Noted.

Yes sorry OP but it would definitely put them off, and regardless I can’t see what you would stand to gain from showing them.

As pp said it’s important to take emotion out of it, and I would add that some of your posts here make it appear like you want to publically win against your employer in some sort of petty revenge. Not to say that’s not a valid thing to want but again it’s something to make sure isn’t showing when you speak at the tribunal.

compensation for what? Can you not get another job?

🙄🙄🙄🙄🙄

17 days over 10 periods in 3 years. Very harsh to have sacked you, even without a disability.

Just be guided by your union. Likely they will settle with you.

Get an agreed reference but have something in settlement agreement which states something along the lines of " any proforma reference forms will be completed on a no less favourable basis than that set out in the agreed reference". The reason for this is that - if they get a form to fill in and they just send a reference it's very obvious its been agreed previously.

Thank you all. I am grateful for reading your comments coming from different perspectives. My Union rep says they like my chances.

They also said that they have not seen a case with so many serious failings. They’ve often see one or two failures, but in my case there are apparently serious failings at every level

Good luck. Your best option is to settle if you get a decent offer. ET is a gruelling experience.

I'd recommend you watch a tribunal yourself so you can see what happens.

Thank you. I’ll certainly look into doing that

That’s interesting! I thought this was frowned upon? Then again, employment tribunal decisions are in the public domain…

I’m disclosing my medical records and my one OH report, stating that I was likely to be considered disabled under the EA2010

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
This is confusing. On one hand you say you can prove it, on the other, you say it is likely. This is a significant difference.

Not every condition that can fall under the definition of disability automatically mean it applies to everyone with the condition. You say that recognised one condition, which means they have considered it and are not reluctant to do so.

Without knowing what you claim to be a disability, and what your request for adjustments was, it's absolutely impossible to determine if they were unreasonable.

You mention that there were many failures in the management of the situation, do you know what these were? Failing to follow their own policies can mean you get what you request, or it could mean they just get a slap on the wrist. Then there is the potential argument over the interpretation of the wordings used in the policy.

Have you requested anonomised sickness absence data, per employee, for the last three years (via a FoI request, plus a request for them to include this in the bundle). I would. If you know any governors they may have this information.

I’ll certainly ask for this at disclosure. I had an appointment with a volunteer Employment lawyer at ELIPS, who also suggested I request the same. However, I’m not sure whether I should ask for it in relation to disabled employees, non-disabled employees or all employees?

I assume this is advisable to see if they treated other employees more favourably?

Or if they have indeed treated you consistently with others.