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…

I know that I was not treated consistently because a former colleague had more absences than me and three times as many days off than I had, despite not being employed for as long as I was.

The colleague does not have any disabilities or disability related absences. The colleague wasn’t ever disciplined, let alone get sacked for it.

Sort of - that you were treated less favourably than others (able bodied colleagues if you can get that data).

I'd also ask for the specific employees' sickess absence data (anonomised) who you believe you were treated less favourably than.

I would ask for the data now by FoI - because disclosure might be too close to ET date for them to get the information (you know the dates so you judge). Looks bad if they've had loads of time and not complied with request.

My former colleague has asked for their sickness absences data via DSAR to be used as evidence at the final hearing!

Unless it’s a massive school, they’re not going to release that as it’s likely people could be identifiable
Exactly that! If it is easy to identify the person (because you know who had more or less X number of days off sick, they are not going to release that information to you, and thank god they wouldn't.

Good luck, OP

How would they be identified if the data was anonomised - names removed?

She doesn't need to know who they are - she can ask row x, row a, row c. We're they subject to capability procedures? If not, why not? Does that person have a disability?

She doesn't need to know who they are - she can ask row x, row a, row c. We're they subject to capability procedures? If not, why not? Does that person have a disability?
Yes, but if say 5 rows are between 2 and 5 days and then one is 20 days, that person can be identified as an outlier. That person is entitled to have that information kept confidential, hence why HR would be in trouble if they released this information and rightly so.

Are you claiming direct disability discrimination? Or discrimination arising from disability?

I know that I was not treated consistently because a former colleague had more absences than me and three times as many days off than I had, despite not being employed for as long as I was
The way they deal with other people is irrelevant. The only thing that is in your case is if they followed their policies in regards to your situation.

Not true. It is absolutely relevant if the OP can demonstrate that non disabled employee was treated more favourably (ie not sacked) than a disabled employee

Notwithstanding the above, based on what you've said here OP I think your claim is on shaky ground. I believe there are conflicting cases on whether the adjustment you were asking for is reasonable in this context.

It is absolutely relevant if the OP can demonstrate that non disabled employee was treated more favourably (ie not sacked) than a disabled employee
Yes, indeed, but first OP has to demonstrate that her disability is indeed meeting the definition as such since she said her employer didn't recognised it as such (although recognised the other) and that the person(s) she wants to be compared with are themselves not disabled, which will be hard to do unless they told her personally.

Disagree, only the employer's side would know who the rows of data are referenced to. Comparative data assists in establishing whether treatment was fair or not.

Discrimination arising from disability.

I’m asking the tribunal to add an additional claim of direct disability discrimination due to new evidence coming to light. I doubt it’ll be granted, but it’s worth an ask

Failure to make reasonable adjustments isn’t my only claim. There are others, including discrimination arising from disability and unfair dismissal.

I was dismissed without relevant reasonable adjustments in place, without an up-to-date OH report (the only one I had was a year old at the time of my dismissal.) They also never asked me to consent to them undertaking a medical investigation (except for that one OH assessment I had), so I know no up-to-date medical investigation had taken place because I would have had to consent to them.

I was also not offered any of the three suitable alternative roles (relevant previous experience) they had advertised a few days before my dismissal (or even a trial period) prior to my dismissal.

These claims are stronger than my failure to make reasonable adjustments claim, which is still worth pursuing since without those reasonable adjustments - I would not have been dismissed at all!

The amount of sickness absences is what is stated in my dismissal letter

No, there was no improvement plan.

There were Trigger Points. Like I said previously, I asked for reasonable adjustments in relation to these, but was repeatedly refused.

I told them how I was taken through their absence policy because of how my disabilities affect me, but they repeatedly asserted that I had to be treated the same as every other employee.

Despite their own absence policy stating that the trigger points were “guidelines only” and that the special rules in relation to disability should always be kept in mind.

🙁

It wasn't upheld