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Original poster

Dismissal on grounds of capability! Help

24 replies

simplysarcastic · 27/09/2015 15:12

This very long winded, so I will aim to keep it as brief as possible.

Last week I was dismissed on the grounds of capability. I broke my foot at work last year, it failed to heal and Ive had to have 2 operations on it. I'm likely to be about 8-12 weeks away from a recovery. I told my work place that although I couldn't carry out my current role at this time I would redeploy and work centrally at a lower pay grade if necessary. It's my foot that is broken not my mouth or my brain. My employer chose not to redeploy me and said the timescale my consultant had given was too far away.

I also requested a period of disability leave which was denied, yet other collegues working at my grade have been granted leave for 3 month holidays and 1 had a year to explore a business opportunity.

I've been dismissed with contractual notice and intend on appealing. My contractual notice is 12 weeks pay as my service is 15+ years. I will also be due holiday pay.

I've spoken to my solicitor throughout this process and she told me to use my union rep, which I did but I think he was slightly out of his depth.

I really don't know where to go with it all now. I intend to appeal but I'm unsure of my next steps after that. The solicitor just told me to "let her know" if I got dismissed.

Has anyone had a similar case? Would you change solicitor?

OP posts:
HermioneWeasley · 27/09/2015 17:45

Your solicitor sounds crap so yes I would change her. Has she been supplied by your Union?

It's impossible to say from your post whether or not you have a claim for unfair dismissal, but in the meantime you should appeal on the grounds they haven't considered redeployment until your surgery and ask them to look at that again, or at least tell you why it's not possible

Original poster
simplysarcastic · 27/09/2015 17:50

Thanks for your reply.

The solicitor is provided by my union.

They told me to "apply" for other jobs at the central location which I applied for 3. When i went to my dismissal they asked how I had got on. That was it.

OP posts:
HermioneWeasley · 27/09/2015 17:54

I think you need to complain to someone more senior in your Union - you have presumably been paying subs for many years for this eventuality and you are not getting the service you are paying for.

BeaufortBelle · 27/09/2015 17:55

If you had the accident at work has the H&SE been notified. Was there any employer's liability. What is your jib, broadly? What is your attendance record like generally? Are there any warnings on your record?

On the face of it if the accident was at work they are being unreasonable. What does your union rep say? Have you contacted ACAS for advice?

Original poster
simplysarcastic · 27/09/2015 18:09

My employer has accepted full liability for the accident. I'm a store manager for a large supermarket brand.

I've had no previous long period of sickness in 15+ years. The only long period I've had off is 2 lots of maternity.

I spoke to acas who again sent me back to my union Sad

OP posts:
AnchorDownDeepBreath · 27/09/2015 18:16

How long have you been off for, in total, this time?

Original poster
simplysarcastic · 27/09/2015 18:28

7 months and 3 days

OP posts:
SheSparkles · 27/09/2015 18:31

Check your hous hold insurance to see if it covers you for employment disputes. We had to use ours once and we had excellent step by step advice from their employment lawyers

Original poster
simplysarcastic · 27/09/2015 18:37

Wow thank you Shesparkles not an avenue I'd of thought to go down

OP posts:
Mrsmorton · 27/09/2015 18:40

No actual advice but moral support OP. Fight fight fight.

Hope you are recovering and not in pain etc.

Coffeethrowtrampbitch · 27/09/2015 18:44

I would second what she sparkles said, dh had a claim for unfair dismissal and our home insurance appointed a solicitor straight away.

They were very good but his former employer folded the company to escape that and other liabilities, so we were ultimately unsuccessful.

Phone you home insurance company and ask if you have legal cover right away, if you do they can get the ball rolling and get you legal help fast.

Original poster
simplysarcastic · 27/09/2015 18:49

Thank you all Flowers

I will get on to the straight away.

OP posts:
tribpot · 27/09/2015 18:55

A large supermarket brand should have had any number of desk-based opportunities for someone at your level of experience. In fact as the store manager I'm surprised that full mobility is a requirement, if you were a wheelchair user would you be excluded from the job? (I appreciate the issue is about the periods of recovery rather than how much you need to be on your feet at the store).

Nonnainglese · 27/09/2015 18:56

As your employer has accepted full responsibility can you sue for damages?

BeaufortBelle · 27/09/2015 19:52

Are they paying damages? I too think they should be providing more support although they will argue that you will be unable to resume your full duties Inca reasonable time. Have there been regular consultation meetings about when you might return and what could be done to support you? Has there been advice from occupational health? Would you actually want to work for them again? Might it be best to get a solicitor help you negotiate a settlement agreement equal to six months pay and a reference? What was happening in the run up to the dismissal? Have you checked your rights vis benefits and what you might get if you leave voluntarily as opposed to involuntarily? Have you been on full pay whilst off sick.

Had the accident not been at work I don't think you would begin a position to argue against this. If there has been compensation paid for the accident already I think your case is weakened.

Original poster
simplysarcastic · 27/09/2015 20:11

I haven't had any compensation paid to me as of yet and to be honest I'm not bothered about the money.

I've lost a job that I absolutely loved doing.

OP posts:
lougle · 27/09/2015 20:17

Do you have a pension? Does it provide for Ill-health retirement?

ImperialBlether · 27/09/2015 20:25

Hang on, you broke your foot at work - they admit liability - and then they fire you because you've got a broken foot? Are they kidding?

Is the reason you haven't yet been paid compensation because your foot isn't healed? Never mind saying you're not bothered about the money - this is causing your career to end right now! You HAVE to be bothered about the money.

You need really good legal advice here; I just can't see how they can justify their actions.

ImperialBlether · 27/09/2015 20:26

It must be a really bad break if you've been off for seven months. It must have had a huge impact on your home life, too. Can you drive? Can you do anything around the house?

MintyLizzy9 · 27/09/2015 20:33

Does your company have an absence policy and a redeployment policy? If so did they follow it? I'm a HR manager and this sounds really off, 12 weeks would be a reasonable return date for me, even more so with your long service. You must appeal, if not you may struggle to take it forward as you won't have explored all opportunities available to you via company policy (ACAS won't get involved until you have reached the end of the line with appeals etc). Ask for your Union to praise a more experienced rep, I know they do at my company. The reps have limited experience so someone from the actual Union (rather than an employee rep) will attend hearings when it's a little more complicated.

Best of luck Flowers

MintyLizzy9 · 27/09/2015 20:34

*provide not praise!

Original poster
simplysarcastic · 27/09/2015 20:53

I broke it, after being in plaster for 6 weeks they x rayed and found it was a non union malunion fracture, 2 operations later, another 12 weeks in plaster and ive now got a screw in it to hold it together. I can't drive/play with my DC in fact I'm pretty bloody useless.

I went to occ health 12 weeks ago who advised I couldn't at the moment return but would be able to make a full recovery agreeing with my consultants timescales. They put a strong advisory of redeployment on my report. The HR team at my meeting told me to apply for jobs centrally. I let them know which I'd applied for but they just sent me an email back saying - good. They kept banging on about "reasonal adjustments" they could offer and came to the conclusion their wasn't any.

OP posts:
BeaufortBelle · 27/09/2015 21:03

Absolutely ridiculous. You shouldn't have had to apply for other jobs, you should have been redeployed temporarily until you had recovered sufficiently to resume your full duties. What level of HR have you been dealing with? I'd contact the solicitor as others have suggested and copy everything with a chronological outline I all that has happened to the HR director

AnchorDownDeepBreath · 27/09/2015 21:48

Do it'll be around ten months in total (7 gone plus next 12 weeks)?

Thats not long for a capability dismissal. I think additional legal advice would be beneficial, as others have suggested.

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