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Original poster

is this discrimination?

57 replies

UselessEmployee · 12/09/2010 13:32

I've been off work sick for the past eight weeks, and had a meeting with my supervisor about it last week.

The upshot of it is that, unless I can "persuade" him by December 31th that I will take no more time off between now and the end of April 2013, I will be sacked. His rationale is that my performance is affection the funding chances of the whole department.

Is he allowed to specify this?

And given that, as a woman I am more likely to get pregnant than my male colleagues, and given that my disabilities mean that I am off sick more than my non-disabled colleagues, is this discrimination?

(Really, my chances of taking no further leave are nil. I'm in and out of hospital and if/when my health improves I want to TTC ASAP.)

OP posts:
Original poster
UselessEmployee · 16/09/2010 17:23

And yes, I've kept all emails, especially the nice ones :-)

OP posts:
RibenaBerry · 16/09/2010 17:26

I think you need to focus away from the performance angle. As Flowery said, capability in this scenario means not physically present to do the job and unlikely to be able to attend work for the foreseeable future. It isn't a reflection of your performance when you are there.

It does sound odd to dismiss you in these circumstances. The comment that you have no idea when you will be better is slightly ringing alarm bells - if an employee is likely not to recover in the forseeable future, it might be fair to dismiss after 8 weeks and not wait longer. However, the normal process would be to obtain a medical report before making any decisions. Also, if sick pay continues for a certain period, there is an implicit indication that they can wait that long before needing to make a decision.

I think you need to talk to ACAS about what has happened, or find a lawyer who will have a free initial discussion.

hatwoman · 16/09/2010 17:31

UE - I'm so sorry your employers are being arseholes. I hope you get this sorted. A couple of things in your post worry me, as they might have relevance for me. I don;t want to hi-jack but I'll start another thread and would really appreciate your input - and fbb's, as ever. I'll add a link here when I've done it

flowerybeanbag · 16/09/2010 17:42

Yes I agree technically it may well be possible to dismiss on the grounds of capability after 8 weeks depending on the condition and getting a firm medical opinion that there is no immediate or short term prospect of return. That would be quite quick and it would usually take longer.

However especially in the case of disability-related illness they would really need a firm medical or OH opinion that there was no prospect of return in this job, then investigations and an opinion that no adjustments could be made to this job, then trying to redeploy elsewhere, before finally dismissing.

Doesn't sound like any of that happened really. I agree think about talking to ACAS or see if you can find a lawyer who'll do you a free consultation so you can go into proper detail as you couldn't here.

hatwoman · 16/09/2010 17:44

fbb and ue - if you have a moment I'd love your opinions: http://www.mumsnet.com/Talk/employment_issues/1042720-implications-of-not-declaring-chronic-illness-to-potential-employers thank you

RibenaBerry · 16/09/2010 17:44

Agree Flowery - I just wanted to flag that point because I am always slightly wary when we all jump up and down and say 'potential case' in case disappointment lurks round the corner or there are key facts which we don't know (and the OP doesn't realise we need).

Hi, by the way.

hatwoman · 16/09/2010 17:45

try again

flowerybeanbag · 16/09/2010 17:54

Oh absolutely, totally agree, I'm all in favour of reducing jumping up and down.

Hi! :)

hatwoman off for bathtime will have a peep later.

Original poster
UselessEmployee · 16/09/2010 19:21

This is helpful. What I'm getting is that my health itself is the key issue.

At no point has any medical evidence come into the discussion, neither a medical report from my GP consultant nor any recommendations from Occupational Health. All they have asked me is when I will be well enough to come back to work, which is question I can answer with about as much certainty as the length of the proverbial piece of string. I have given them some information about my health problems but have said, and truthfully so, that I have no clear diagnosis and thus that prognosis and treatment are extremely uncertain.

I think I need to see if I can access Occupational Health.

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hatwoman · 16/09/2010 19:54

UE - thanks for your comment on my other thread. you seem to know a bit about ms. in addition to the job situation I hope your health gets better - and you get clarity/diagnosis/treatment/prognosis - though, certainly in my case, the latter is never forthcoming.

Original poster
UselessEmployee · 16/09/2010 20:01

I think that's the case with most chronic illness/disability - the average employer seems to think the Diagnosis X = Outcome Y. And life just isn't ever that simple or precise. I really hope that you can stay well!

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Original poster
UselessEmployee · 29/09/2010 10:17

OK. An update. Firstly, they've sacked another woman at the same grade as me who requested flexible working they couldn't accommodate.

I've found that I am covered by an union and have formally appealed. From reading through all the policies and procedures they either need medical proof that I'm too ill to do the job (which my GP and consultant would be far too supportive of me ever to allow them to provide) or evidence of insufficient performance (which they've been unable to provide, save for these two rearranged meetings).

But there's a meeting to discuss my appeal tomorrow. And I just don't trust them any longer. It feels as though they're desperate to persuade me to leave before I get either pregnant or a definitive medical diagnosis and can accuse discrimination. I don't trust them to be reasonable any.

Any advice for the meeting?

OP posts:
Elsaz · 29/09/2010 12:12

By 'a meeting to discuss my appeal' do they mean a meeting to talk about what the appeal procedure is? or a meeting that constitutes the first stage in the appeal procedure?

Advice for the meeting - bring a union rep/colleague with you. Even if this person doesn't say anything, they can take notes and observe what is happening. They might pick up on things you miss. Also management may behave differently in the meeting if there is a witness.

Don't agree to anything there and then. If they ask you to agree to stuff, say you want time to consider their offer and consult with your advisors. (Advisors may include us internet sprites Grin.)

Original poster
UselessEmployee · 29/09/2010 12:18

A meeting to constitute the first stage of the appeal.

I still can't decide whether to take the union rep. I'm hoping to go in with a 'let's sort this out gently and collaboratively without getting all official' approach, and try and appeal to the better nature of the manager in question. Before this all happened, I'd thought he was quite a nice man Blush.

But yes, I will agree to nothing whatsoever there and then. I think where I got myself into trouble before was in agreeing to their silly initial December ultimatum, so I will be very careful.

You internet prites are cheaper than solicitors, certainly Grin

OP posts:
Elsaz · 29/09/2010 12:20

Also it's good form to let them know in advance the name of the union rep/colleague you are bringing with you.

Elsaz · 29/09/2010 12:24

Yes but as it's a formal appeal, you are already 'getting all official'.

That is not to say you shouldn't be gentle and collaborative, but it is an official procedure that you and they are engaging in.

RibenaBerry · 29/09/2010 13:52

I agree - take the union rep. They are used to handling these meetings and a rep worth their salt will talk to you beforehand about the tone you want and your aims.

flowerybeanbag · 29/09/2010 13:54

Agree. You are appealing a dismissal. It is official, and the time for being gentle and collaborative has well and truly passed.

flowerybeanbag · 29/09/2010 13:56

Meant to say I agree about taking the rep and my own view (which others may or may not agree with) is that once you've been (probably unfairly) dismissed, gentle collaboration isn't the way forward.

RibenaBerry · 29/09/2010 14:04

I guess it depends whether you think you can talk them into reinstating you (and whether you want to be). I have seen it happen (once or twice) that the immediate manager gets a dressing down for not understanding the rules and the employee gets reinstated.

I suppose I would say 'firm but fair' would be my aim. Make it clear you know the law and your rights and will do what you need to to protect them, but if you want your job back leave the door open for them to back down.

Original poster
UselessEmployee · 29/09/2010 22:13

This is great advice, and I'm grateful.

I'll update you all tomorrow!

OP posts:
StealthPolarBear · 29/09/2010 22:34

Here's my useful contribution
BLOODY HELL
Hope you wipe the floor with them

sobloodystupid · 30/09/2010 15:11

What's happened? Hope that they've backed down once they've seen the error of their ways...

Original poster
UselessEmployee · 30/09/2010 17:06

I have my job back!!!!!!!!

Thank you, all of you, so so so much.

I couldn't have done it without you.

OP posts:
RibenaBerry · 30/09/2010 17:08

Whooooo hooooooo!

Sometimes, just sometimes, the process works and protects people's jobs. I'm grinning now!