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’ve spoken to ACAS about it and they said it was a common reasonable adjustment for disability-related absences. It is even listed on their website.

I suppose the judge (quite literally) will be the judge of that. I told my previous employer in my emails that I would welcome suggestions from them, but as I said, they refused.

I’m so sorry. I am trying to answer each question as they come

They were office jobs meaning I wouldn’t have to walk around the building, that would have been a big help given the nature of one of my disabilities. The option of redeployment wasn’t discussed with me, not even a trial period to see how it would go

Thank you. Can I ask if your employer is a large company, or a smaller one?

Apologies for drip feeding, but at the end of my emails asking for reasonable adjustments, I even said that I’d welcome alternative suggestions - but they failed to suggest any alternatives. I hope that’ll work in my favour!

@CantHoldMeDown That’s just it, though. Asking for reasonable adjustments in relation to disability related absences is not that same as asking for those absences to be ignored. It’s asking for them to be recorded separately.

Given the fact I explained in my emails that there were other possibilities and then asked them to suggest alternatives, is a factor to consider. They did not do these things.

Especially given their own policy says that their own absence policy is a guideline and flexibility is required when dealing with disability related absences (and pregnancy related absences, for that matter)

@CantHoldMeDown Thank you for taking the time to speak to me (and everyone else who has commented on this thread.) I value your input, since it’s interesting to read different perspectives.

I’ll certainly update you on the tribunal outcome, if we don’t reach a settlement beforehand!

Why do you think they needed to offer you alternative roles if they dismissed you for absence OP? That would only apply in a redundancy scenario.

Anyway, good luck in your claim. As I said I believe there are differing judgments on whether it would be a reasonable adjustment to treat your disability related absences differently from other absences in deciding whether to dismiss. The strongest part of your claim sounds like they dismissed you when they didn't dismiss non-disabled employees with longer periods of absence.

Do you know they don't have any disabilities? Have they told you this themselves?
Is it appropriate for their personal info to be shared like this?

Highly unlikely a tribunal would say that an employer should have offered an alternative role. The duty is to consider reasonable adjustments to enable the employee to carry out their contracted role.

Is your former colleague a witness for you?

Did you apply for one or all of the three roles? I'm not sure that employer was obliged to make suggestions to counter the request for adjustmenrs.

Because for capability dismissals, dismissal has to be the last resort. Since there were other options available, such as getting an up to date medical position, redeployment (or trial period) and reasonable adjustments to absence policy etc.

Dismissal was hardly a last resort

Surely the key matter here is that according to you, they haven't recognised the one disability you claim was the reason for most of the absences as a disability (as defined in the Act I would assume).

You say they have acknowledged one of your two disabilities.

How are you evidencing that the second disability is indeed one recognised as such legally? You said it would likely be.

Until this is done, the rest of the challenge becomes meaningless.

I don't want to come up as offensive but the way you communicate on this thread is very scattered and would lead to confusing rather than convincing. This could be because you don't want to share everything here though.

Not true. As evidenced in the Rentokil vs Miller tribunal. Mr Miller was a pest control technician in a “field role” and was then diagnosed with multiple sclerosis meaning, unfortunately, he was no longer able to perform his role. He applied for a service administrator role but was unsuccessful and ultimately dismissed.

The Employment Tribunal upheld Mr Miller’s claim that he should have been trialled in the service administrator role and subsequently awarded remedy to the Claimant for unfair dismissal and disability discrimination.

The conclusion was that that the burden of reasonable adjustments perhaps goes further than we have previously expected and putting forward of a trial in an alternative role should be considered before immediately jumping to a dismissal.

Best of luck OP & please do update your final hearing outcome as I m very interested. I’m currently going through ET as well. My preliminary hearing is in 2 weeks time but I have got solicitor represent me. We both pretty much have the same claim but mine is far worse than yours. I have two OH reports recommended reasonable adjustment and one from my GP but my previous employer failed to implement reasonable adjustment for me on 3 occasions. They failed to follow ACAS code when dealing with my formal grievance. In the end, I resigned with immediate effect as constructive dismissal.

Thank you, so much. I’ve made reference to this case in my witness statement

Witness statements aren’t for case law OP. That goes in your submissions.

That case is also distinguishable since the claimant applied for the alternative role

I’ve been through employment tribunal and it was fairly straightforward, the evidence was there and they took that and made judgment

we won
Not an absence case though.
you have by the sounds of it plenty of evidence in the way of emails etc

good luck

Thank you. I’m so glad it went well for you!

The respondent have denied that they were aware of one of my disabilities, despite having lots of correspondence between us about said disability. I’m not too concerned about it though because the evidence speaks for itself (as does my disability impact statement)

Would love to watch your ET, sounds very interesting.

@JoyousPinkPeer Thank you. I’ve spoken to a volunteer employment solicitor who told me that all of my claims were strong

Great, I thought as much as your union had already said this. I wish you well, hope you win.