H has been summoned to disciplinary

[IThinkIveHadEnough]

I will try to not make this long.

H has been in and out of work since the beginning of last year due to depression. He has on all of these occasions been signed off from work by his doctor. We had a bit of a ride getting him on the right antidepressant and unfortunately this one he is currently on doesn't seem to be working any more. He has attended work OH twice, both times he was managing his depression. The last time was at the end of last year and at the time he was ok when he attended. Not long after a few things happened - I was made redundant and he had a big increase of stress at work. This resulted in him being signed off work again after Christmas and he is currently still off.

He has provided sick note for the absences, though some have been late. The main problem has been him keeping in touch with work, which he hasn't really done. He knows he must do this and tries to, I have seen him try and ring work but he hasn't been able to bring himself to do it. He is the same about answering the phone and that's not just about work but pretty much anyone. He has stuck his head in the sand, he doesn't seem to be getting any better and now we are on the precipice of him getting fired (I think).

Along with the letter inviting him to a meeting there was bits of policies and also evidence from the managers point of view of what they have been doing. Now having gone through all of this with him I will say that H hasn't done what he has meant to have done. Part of him being ill is the whole being unable to communicate effectively and they do not accept texts as a way of keeping in touch, which he struggles he even do that sometimes. Similarly there have been things that management have said they would do but haven't done. That doesn't make H not doing what he's meant to any better, I'm just putting that there.

I've read through all the paper work, I have tried to take it all in, but I just don't know what we can do. He was trying to focus on getting better to go back to work and then starting looking for another job. Part of his job is a cause of his depression. I have begged and pleaded with him to get in touch with work, I know it's not his fault that he is ill. The letter has stated that he can take someone with him but he isn't part of the Union and there isn't a work colleague he feels he can take with him. How does he prepare for this? I am so stressed at the moment. He hasn't been receiving any form of sick pay for the past two months and we are severely struggling on my wage alone. I'm sorry if this is all over the place, my head is pretty much all over the place at the moment and we have not very long to get him prepared for this meeting. Any advice would be greatly appreciated.

The bit about not being able to tailor things for every employee? That's exactly what reasonable adjustments for a disability is.

It sounds like the guy in the meeting was OK but not really up to speed on the ins and outs of disability discrimination and the Equality Act.

However on the face of it it sounds like your DH will not be.well enough to work for some time. I do wonder if dismissal with notice pay and all his annual leave pay wouldn't be the best thing in the long run. These disciplinary / capability interviews are incredibly stressful things and it sounds like he would be beffer off on ESA for a while.

for you both.

Thanks confused. I think that may be the best option too, it will give us a bit of breathing room also but if they don't offer it can H appeal and ask for it?

No I wouldn't think he can appeal as such and ask for that (although he does of course have the right to appeal the actual decision they come to). But he can hand in his notice himself. As he's only worked there for 3 years there won't be a huge financial disadvantage to doing that. Statutory notice is 1 week for each year of service, up to a maximum of 12 weeks. If they talk in terms of months it's slightly different but not much. If he's signed off he wouldn't have to work it.

I'd be surprised if they don't at least begin the dismissal process though. It's not in their interest to keep him employed and on the sick, with no clear date for a return to work.

I hope it goes as well as possible

So H had his meeting. The notes taken were awful from their side, inconsistent with bits missing or added in. The outcome was a final written warning. There are a number of conditions to be satisfied as a part of this.

He then had a second formal review yesterday where he was told that if he didn't return to work when his sick note runs out in a few weeks then they will fire him. His options are:

1. Resign, receive holiday pay and get a (good) reference of the time he was there

2. Go back to work, don't meet long list of requirements and get fired

3. Go back to work, meet requirements and keep job

4. Force their hand to take him to final review to terminate his contract. He would get about 6 weeks pay (in-lieu of something?) and his holiday pay but would receive a reference saying his contract was terminated due to bad health.

These were the options they gave him. If he goes back he will be phased in quickly. Looking at it I don't think he will be able to meet the requirements they've set. The best option at the minute is probably option 4 as we're skint, but I don't want him getting a bad reference.

Realistically what are his options? Could he negotiate option 4?

I expect the employer would prefer that he resigns, as it's risk-fee for them. If you are seriously considering resigning, I'd ask to see their reference first - hr could arrange for a specific reference to be kept on file, to be used each time a reference is requested.
I really think you'd benefit from professional employment law advise, I'm thinking here about whether your husband has a claim for constructive dismissal.

All due respect to cavalo, please please don't even think about constructive dismissal, OP your DH sounds like he is not in a strong position health wise to drag things out any longer. Massively stressful.

Take option 1 - IMO.

Clean break move forward, don't look back.

Option 4, what use is a reference basically telling a new employer that your DH isn't healthy! That's just inviting new prospective employers to put his CV straight in the bin, in favour of a fit person.

Option 1 reference will say he did a good job between the date of x and Y, no muddying the waters about health

why isn't retirement due to ill health an option? is it because the disciplinary process has started?

horrible situation to be in op - just put yr dhs health first.that's what matters most.

that's what matters most

How much of a financial difference is there between option 1 and option 4?

Option one is best - when he's well, he'll be able to apply for jobs with a good reference and he'll be in a good position.

Option four gives you more money now, if you need it, but might be more stressful to go through.

it's worth thinking about what he'll declare to a future employer anyway. If he's going to have a period of time off now to recover, will he tell them he was ill? They are likely to ask what he did between the end of the good reference and the date he applies. If he'd tell them anyway, option one is diluted a bit, although a good reference is worth it's weight in gold.

If he does 1 would his future claims for JSA be sanctioned or would being on ESA already avoid that? Tbh I'd go with 1 if finances work.

Is ill-health retirement (from this job) not possible, OP?

OH are the people to ask about that btw. Our OH would refer your husband to a clinical psychologist for assessment for this.

Then again, our OH would have referred your husband a long while back for assessment and treatment as we had clinical psychologists employed by OH for staff support (NHS staff)

The OH department of smaller companies often have an agreement whereby they can refer some employees to Clinical psych services - our psychologists had contracts to provide their services to other organisations including banks.

I don't think ill health retirement is a disciplinary outcome. I suppose that's why it's not being considered?

This does sound like a rough situation all round.

The reference in option 4 may not be bad as such as it would say terminated due to ill health and once your husband has recovered the ill health won't be a current issue if you see what I mean.

The issue with Option 4 is that reference - because from what you have said previously OP, your DH has been absent with this health problem before (and therefore may be again, unfortunately)

Option 1 would be preferable but as a PP said, may affect any benefits so I'd check this out if you can.

Option 2 is to be avoided IMO, he'd be fired for poor performance reasons. Also not good for the reference.

Option 3 does seem unlikely

I doubt they'd consider ill-health retirement. Are you sure he'll get the 6 weeks extra pay (is this in writing?) because if they dismiss on gross misconduct grounds then it is usually instant dismissal with no notice (or pay in lieu of). I don't think a claim for unfair or constructive dismissal is advisable either - I think the company has followed procedure which is what they'll look for.

I hope you can find a solution that eases the pressure on you both - it must be grim.

Thank you for your replies.

I don't think constructive dismissal would be a route we could/would go down, we'd most likely lose and just be screwed in general.

I've got all of this info off H second hand and to be honest he shouldn't have gone into either meeting along, he said his head was just fit to explode yesterday and he should have asked for a break but didn't. They've said that he will get a copy of the notes from yesterday's meeting but I've asked him to contact them and get them to put the options in writing too. He got a final written warning from his disciplinary and yesterday's meeting was kind of a seperate thing. He said it felt a little like a fact finding mission and they asked him a lot of questions again about whether he considered himself to have a disability, what was he doing to get himself better, what was his dr doing etc etc. His manager said to him what H was saying and what his body language was saying were two different things.

Option one would probably be best, I agree, but financially it doesn't work which is crap. The difference between option one and option four in monetary terms is about £2k which doesn't sound like bugger all but it will give us breathing space for two months. At the moment we have my wage coming in and that's pretty much it. There is child benefit and tax credits but pretty much everything goes on bills and childcare, there's not really anything left over. Our combined monthly income post tax is roughly £2300 and I'm only bringing in just over £1200 a month at the moment which barely covers the bills. I wish we weren't in this position to have to base it on finances but we do. I think he's looking at going for option four at the moment but it's just the bad reference that's putting him off. He wants to just ask for a reference stating when he worked for the company but doubts they will give it.

It's annoying that it's gone on this long. Occ Health did have him in twice but the first time they referred it back as a management issue and the second time when he saw them he wasn't actually bad as things were going quite well and they decided they needed no further action needed taking. It was something that happened at work which involved being put in a very stressful environment that made him spiral again. A referral like you describe horizon would have probably been really beneficial. He works for a big retail bank so I imagine that they probably have the resources to do what you describe

Please contact OH again, OP.

They are the ones who would assess/ refer for assessment for ill-health retirement. It's not a decision that his employers make and they are not likely to "offer" it - it's not their area. They wouldn't be qualified to make any such decision.

But please do contact OH before he accepts any of their options.

because if someone who very clearly would have qualified for ill-health retirement resigns then they can lose any chance of ill-health retirement.

He should always be able to self-refer to OH and he's already on their caseload.

It doesn't mean he'll never be fit to work again, btw, just that it would not be possible, healthwise, for him to return to his current role.

It's a very seperate process to the disciplinary one etc and it's a process that focuses on your husband's welfare (you can probably go the OH appointments with him to help him to attend though you may have to wait outside for some parts). It sounds like he really should have OH involved and please don't accept any of the "offers" before then as there could be another, much fairer, way that works better for your husband's welfare. Best of luck to you both.

Would he be looking at going back into banking, when he's recovered fully?

My experience of retail banks would suggest that they'd run a mile at anyone who had been medically retired, unless they had very strong evidence that they'd fully recovered and wouldn't relapse.

I'm not saying it'd be easy with his contract being terminated, though, and he'll have to explain the gap because finance will expect a full background check.

It might be worth having a chat with ACAS?

It's all irrelevant if he'd go into a different industry, though.

Option one would be easiest from a "getting future work" position, but he'd still need to explain the gap in employment, and if it's not financially viable, you can't proceed with it. Is he currently claiming ESA?

i second the returning to oh

i am medically retired by my bank - they do re-assess to see if you may be fit enough to return to employment within the company

don't sign or agree to anything unless you have exhausted all possibilities with oh

good luck - both of you

Just to update on this. DH had his contract terminated on Wednesday. He spoke to his Dr who said he wouldn't be fit to return to work for another 6-12 months. Once he informed work they gave him a date for his final review, which was on Wednesday and then they terminated on the grounds of ill health I think. He's getting a month of pay plus any accrued holiday which is at least two weeks.

I told him about contact OH etc again but he's just had enough of everything. He did speak to ACAS who told him he was to not resign under any circumstances as he would not be entitled to anything so he didn't. He is currently applying for ESA and they said he should be able to get it back dated but he needs to get a lot of evidence together first.

Thank you all for your advice, it was very much appreciated.