Disabled employee but intermittently absent - doesn't want to be reassigned

[finefatmama]

Really need some perspective on how to deal with this.

We have an employee who is disabled - recently wheelchair bound and has episodes of hemiplegia. she works in a role on her own supporting a priority department. the problem is that her attendance has fallen to 40% since September due to her condition. Some of the episodes begin during work hours and we end up sending her home for a couple of weeks. she returns for about a week and it starts again. this has resulted in difficulties for the department and putting the more vulnerable students at risk of failing their exams.

During a welfare meeting, she admitted being exhausted but not wanting to reduce her days to a more manageable 3 days a week as she can't afford to pay cut. Her line manager offered her the opportunity to work as one of the teaching assistants without a reduction in pay but she then threatened to take us to tribunal for discrimination and loss of status.

We referred her to OH but the report came back with a lot of 'none of your business' responses and she told me she 'took someone along for the meeting'. that someone it turned out was not her carer.

We can easily cover her absence of she takes the redeployment opportunity as TAs have a rota and some slack in their timetables. She suggested we hire someone else to work alongside her to cover if she has an episode and goes home - that's two people for one job. That was before she informed staff that she would be making a claim for constructive dismissal if she ever came back and found someone else doing her job.

I think we've given her enough time and options and cannot continue to put our your people's future at stake to accommodate her. What are my legitimate options for dealing with this please?

Has Access to Work been involved in this yet? They may assist in making some really helpful suggestions.

Fine, this is a tricky area and you really need some professional advice to avoid mistakes which could prove very expensive. In the meantime, You need to keep records of everything.

We have no problems with access and she can get round ok- she gets sudden migraines and half of her faces gets paralysed then we send her home for a couple of weeks. It's becoming more frequent with sudden collapses and now a few episodes of incontinence during activities with the kids. The maximum number of consecutive working days she'ds been able to cope with in the past six months is 7. she has admitted to been exhausted almost all the time and has been found fast asleep on the job a few times.

I genuinely think she's not coping with doing her job but her fears for her loss of money and status worries are preventing her from telling us how bad things really are. Are we being unreasonable in pushing for a redeployment.

There will be steps you can take but due to the nature of the issue there is no way anyone can give you anything like decent advice on here, and it would be irresponsible to try.

You must take proper professional advice especially given the approach the employee is taking.

Do you not have HR?

Take proper HR advice or this could get messy very quickly if you don't have in-house HR - consultants are available.

We have employment law advisers from the insurance company to support our HR Manager who's not v good with difficult conversations. I'll be happy to wait a few more months and refer for independent medical advise but it's further complicated by pressure from on high to sort out the department and ensure the kids are well supported as her absence is causing major disruptions for a key subject area. I goes I'm going to have to pay for this case to be handled. thanks

update - I decided to proceed with capability dismissal after she refused to be redeployed to a different role on the same scale as we were trying to achieve a legitimate aim of not ruining our young peoples lives in the name of convenience for a member of staff. She threatened to take us to the press and I told her that i did not object to defending the right of our students to a proper education before their parents so she relented.

She'll probably appeal to the governors and I'll have my work cut out for me.

To dismiss as a direct result of illness could potentially be unlawful. Are your lawyers aware of your decision?

Sorry can't give you advice on employment issues but just to say you cannot have "episodes of hemiplegia", you either have it or you don't. It's a life long condition. It sounds like she may have epilepsy aswell, which can be quite common with hemiplegia.

I think you're on very dodgy ground. I understand that the situation is very difficult, causing you/others more work and affecting the students however I don't really see from what you've said what you've done to try and make reasonable adjustments for her other than suggesting demotion which does not sound reasonable.

I don't think we know enough to say if the op is on dodgy ground... or that she isn't. Disability gives workers rights to reasonable adjustments to do their job. But they still have to do the job. If that's not possible then redeployment is the other option for the employer but if there is nothing suitable then a dismissal for capability reasons can be lawful.

However, if it was my organisation I would want to ensure this couldn't come back to bite me and would be getting legal advice before dismissal which would probably lead to a compromise agreement and pay off.

Threats to go to the press without tribunal proceedings are usually ineffective because if there's a case there's a tribunal claim and if a former employee is not willing to use the (technically) free employment tribunal service or other court proceedings then the press could be compromising their position by running a potentially libellous story.

Now she's been dismissed, as an employer I would be counting down the next three months to see if she makes a tribunal claim or a grievance.

I do worry about just how quickly this has happened. Dismissal for capability usually takes months if done by the book.

I would be interested to know what happens next.

I agree with Katie we don't know enough to say whether OP is on dodgy ground. But given the employee has refused a redeployment (without loss of pay) and the opportunity to reduce her hours, unless there were other adjustments that could have been made, a dismissal may well have been reasonable. Whether it's dodgy will depend on how it was conducted which we don't know here.

No we don't know- but I can't see any evidence of reasonable adjustments having been offered. And how can she do the job if they haven't?

The pressures that be from on high need to be providing interim support until they can get a proper assessment of need.

Its clearly dodgy because of the timeframe and the lack of expert assessment.

What reasonable adjustments could be offered to enable the employee to work with extreme exhaustion, collapses, incontinence and facial paralysis?

Yes an employer is supposed to make reasonable adjustments where possible, but we have no evidence here to suggest there are reasonable adjustments that could be made and haven't been. We don't know whether there are any or whether the employer offered them.

The whole point is we don't have nearly enough information to judge whether it's 'dodgy' or not. It might be, but it's impossible to make that judgement.

It is IMO equally dodgy though to take the stance that an an employee shouldn't be able to be dismissed purely on the basis they have a disability. And equally so to claim discrimination and threaten tribunal when challenged/given alternative opportunities if you are not capable of performing your role adequately.

She may have a disability and there may be adjustment needed but she's still employed to do a job, and if she's not able to do that job effectively be that due to her disability or for other reasons then alternatives need to be found.

I speak as someone who has been horribly discriminated against because of my disability, but who equally knows that being disabled does not mean being given rights over and above anyone else, just equal to them.

I'm sorry for your situation wannabe and thanks for your perspective.

We went for dismissal on those grounds of ill health capability for what we feel are justifiable and legitimate reasons in the public interest. The job involves at least 50% tutoring and academic mentoring of vulnerable exam students and those at risk of failing gsce maths and english. We are talking approximately 65 kids who need intervention to get a C grade or sit through exams and finish the papers. She was unable of to attend and a number of students are at risk of failing. We got to a stage were we decided we were wiling to test this at tribunal. We have also looked at the situation through the eyes of the parents and students and find that the situation is not acceptable.

We'd been going through a four stage of absent management process since November and the final stage allows for us to consider dismissal as an option with evidence from the previous stage - she had been informed at each sage of the process but I was so sure she would have accepted a different option before we got to stage 4. She had said no to reduction in hours, no to redeployment on the same pay, no to job share, threatened members of staff with tribunals every time they tried reason with her or allow her work overtime. When asked what her idea of a reasonable adjustment was, it came back sounding like suspension on full pay with the option of coming in as and when able indefinitely which is not an option. Her absence management triggers for the stages were 4 times the bradford factor figures of non disabled staff and 10 times for the final stage.

I figured we were not going to get a resolution when she made a direct comparison between her role and that of a brain surgeon - saying that if she were a surgeon, no hospital would have no right to ban her from carrying out surgery in her condition as it would be direct discrimination and she would win a hefty compensation if they tried.

"saying that if she were a surgeon, no hospital would have no right to ban her from carrying out surgery in her condition as it would be direct discrimination and she would win a hefty compensation if they tried."

Actually, she'd be up before the fitness to practice panel before you could say "what a load of nonsense".

It sounds like you have done the very best you can possibly do by her, and that she is just not helping her situation. You do have a duty of care to the students you serve as well as to her.

This is a good example of how laws against discrimination have gone too far in some cases. This woman seems to be playing the system with her refusals and comments. That is what understandably makes people wary of employing people with disabilities. It's a very sad situation.

I disagree lisaro. The law is just fine. This particular lady with a disability appears to not understand the law - like many people she seems to think you cannot dismiss a disabled employee.

On the face of it, what finefat has done appears to be acceptable (I say appears - I don't have all the facts and haven't reviewed the paperwork obviously). The surgeon comments lead me to believe the woman not only does not understand the law but that she is also utterly unreasonable and unprepared to work within the law/reasonable adjustment processes. These people exist - I've had dealings with one once - and statistically it is likely that a proportion of them will have a disability the same as the rest of the population. It's hard though because if they (utterly unreasonable people) cooperated with the system/processes instead of fighting against it then I don't think so many would feel so aggrieved and would keep their jobs.

It must be very hard being both the employee in this situation and the person dismissing. I don't envy either. Very sad and stressful all round.