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Original poster

Unfit to work dismissal

31 replies

PopcornBits · 13/09/2017 13:12

Hi, just wondering whether someone can advise for a relative of mine who has been told she will be dismissed for health reasons.

The relative in question has very severe asthma and has regular hospital admissions and signed off work sick notes due to being unable to breathe.

She has had periods of absence from work and they've repeatedly threatened her with dismissal if she doesn't get better. She has pushed through and tried to persevere barely being able to function and they have continued to give her heavy tasks and berating her for it when she's been unable to complete them due to health.

This week she had another hospital admission and was signed off work for a week, she went in to give that note and they've told her that they're going to dismiss her on grounds of absence and unfit to work. They've told her that she can either hand in a unfit for work letter to the manager and that will look better for her for future jobs or they will dismiss her and her employment will end in October.

She's chosen to hand the unfit for work letter in as she doesn't want to burn her bridges but she's understandably upset and panicked.

She's been with the company just over one year and she had a contract.

Is there a case for unfair dismissal here or by her handing that note in they've managed to get rid of her without anything coming back to them?

I appreciate all knowledge and help.
Thanks.

OP posts:
flowery · 13/09/2017 13:32

It depends entirely on whether her condition is a disability. If it is, they should explore reasonable adjustments to enable the employee to fulfil her role.

Other than that, unfair dismissal rights don't kick in until she's been there two years.

How much absence are we talking about? Would she agree it is an unacceptable level, and does she feel that there are any adjustments that could be made to help this?

Original poster
PopcornBits · 13/09/2017 13:41

Thanks for responding. She has been told that she could claim disability as she's had it for more than a year but she's only just been told this now so prior to that it hasn't been classed as a disability.

It's chronic asthma, none of the medications have worked for her, so she's had substantial amounts of time off because of hospital admissions.
They haven't made reasonable adaptations for her at work though, they have plied her with the same level of work which she's been unable to do or has struggled.
She really has tried to not to have too much of an absence often going into work even when she's been signed off.

She rang ACAS and they've told her it's discrimination. But I'm not sure if she has a case because she handed the note in rather than waiting to be dismissed.

OP posts:
Original poster
PopcornBits · 13/09/2017 13:52

Just read that the 2 year rule won't apply as its discrimination so she needs to raise a case based on discrimination not unfair dismissal.

Thanks for your help.

OP posts:
daisychain01 · 13/09/2017 16:19

A letter from her GP to validate the medical interventions she has needed to receive over time will be a good contribution to the documented evidence she needs to prepare if she decides to pursue a Discrimination claim.

Original poster
PopcornBits · 13/09/2017 16:23

Thank you I'll mention this to her!

OP posts:
Akire · 13/09/2017 16:28

I had thought for Disability they have to make reasonable adjustments. If however in this case she's either there or not- theres not a lot they can adjust. If it's a tiny company and can't afford keep paying for cover say one or two weeks a month that's different from a huge company who could bear the cost more. Has she looked into claiming ESA until he asthma is better controlled? Sadly it's not fair on her but neither is it for the company if she is not able be there.

I had to sack someone for this reason- I employed them as a carer they were off a day a week on average. I needed them as no one else to cover at short notice and get me out of bed. It wasn't sustainable if they couldn't do what basic job required, and my own health was suffering in the process.

originalusernamefail · 13/09/2017 16:30

I think it depends what the job is. I have several colleagues who have been 'retired' on health grounds but we are health care professionals who work in an acute environment and a certain level of physical and mental 'fitness' is required to do the job safely. Can reasonable adjustments be made to her role?

Original poster
PopcornBits · 13/09/2017 16:43

Sorry Akire but from my understanding, if someone has severe asthma it's classed as a disability. The work place did not make reasonable adjustments for her. They made her take in large items of stock which due to breathing difficulties she could not do, they still made her do it anyway.

It transpires that they should of either made these adjustments or found alternative work for her within the company.

There is no excuse for discrimination.

OP posts:
Original poster
PopcornBits · 13/09/2017 16:44

Origin they won't make adjustments and have forced her to either hand a note in saying she's unfit for work or she gets dismissed. They have given no other option.

OP posts:
Akire · 13/09/2017 17:04

You didn't say anything about physically lifting just that she was off a lot in which case there's not a lot they can do. If she could just loved to nom physical job and been able to do that of course that would been adjustments. I thought more asking about the fact she in hospital for 1-2 weeks a month ?

OurMiracle1106 · 13/09/2017 17:13

Has she had manual handling training? If she's lifting she should have had it. Something else to raise as well

Original poster
PopcornBits · 13/09/2017 17:30

She works with food and often unloads large trolleys of food. She struggles with that. The food she works with can also make her asthma worse.

OP posts:
Original poster
PopcornBits · 13/09/2017 17:31

I'm not sure OurMiracle I'll ask her.

OP posts:
Original poster
PopcornBits · 13/09/2017 17:33

I also meant to say that she's only in hospital for a week at a time every few months Akire so definitely not months or weeks at a time!
It's because the doctor then signs her off work for a week as well.

I still don't believe they've done the right thing here, they haven't been reasonable at all.

OP posts:
Gorgosparta · 13/09/2017 18:02

Its really depends on how much she is off and what is causing it.

If she is employed to work with food and that causes her to hospitalised then, even as a disability, she could end up losing her job. On grounds of ill health. But its a longer process.

If her job is making her sick, does she want to keep working there?

Looking at both sides of this it could be that they are being unfair, or that they can no longer support that level of absence.

How many weeks has she missed in a year?

daisychain01 · 13/09/2017 18:26

They've told her that she can either hand in a unfit for work letter to the manager and that will look better for her for future jobs or they will dismiss her and her employment will end in October

Are you sure that's what happened? It doesn't necessarily follow that , because she gave them a fitness note to cover a period of absence, that it burns any bridges as far as she's concerned. She hasn't resigned, therefore it would be they, not she, who terminated the contract of employment by dismissing her.

Original poster
PopcornBits · 13/09/2017 19:19

That's what she tells me has happened. They said either give a note to quit or they will dismiss her.

OP posts:
Akire · 13/09/2017 19:24

IF She hands in sick note legally they have pay SSP up to 26 weeks. Unless she dosnt have a contract at all. Can she join a union? They often have monthly fee. It she could get legal advice asap

Bombardier25966 · 13/09/2017 19:43

What do you mean by an unfit to work letter, is this a resignation letter she has written or a fit note from the GP? (A fit note is actually an unfit note!)

Reasonable adjustments are not the catch all you may think they are. The key is reasonableness, and what may be reasonable for one employer will not be for another. Were/ are there any adjustments that could be made without putting an undue burden on the business? Redeployment may be a reasonable adjustment, it really depends on what other positions are available and whether the employee could fulfil the role.

Be careful relying on advice from ACAS. Their first line staff are call centre workers, they are not trained to do anything more than tell you what it says on their website. They certainly should not be proclaiming that an individual has been discriminated against on so little information.

Bombardier25966 · 13/09/2017 19:45

IF She hands in sick note legally they have pay SSP up to 26 weeks. Unless she dosnt have a contract at all. Can she join a union? They often have monthly fee. It she could get legal advice asap

The key there is up to 26 weeks. If employment ends so does entitlement to SSP. The existence of a contract is irrelevant, SSP is a statutory entitlement, not contractual.

A union will not take on an issue after the event.

Gorgosparta · 13/09/2017 19:45

Op either you or her is confused.

What do you mean unfit note?

Bombardier25966 · 13/09/2017 19:49

A final thought, even if there was a failure to make reasonable adjustments, any award would be very limited if she would have been dismissed irrespective due to excessive absence. Given her length of service any award would be minimal anyway.

A compromise agreement may be a more suitable option here, but that relies on her not having already resigned.

JustMumNowNotMe · 13/09/2017 19:49

The Equalities Act covers those with disabilities to a point, but it does not mean you can't be dismissed due to absences related to it. If a disability causes frequent absences from work and an inability to carry out the duties of the role, you are medically inefficient and yes, you can be dismissed as a result.

Have they discussed hwr compensation package yet? Where I work its a weeks pay for each year of service.

paq · 13/09/2017 19:53

I don't know the legalities but it sounds like she applied for a job that she should have known she couldn't do - manual handling and working with food that sets off her asthma. I have every sympathy for her but I think it's a bit much for her to ask the company to create a new role for her around her disability when (a) she's always had it and (b) she's only been there a year.

Justgivemesomepeace · 13/09/2017 20:01

Depends. Its very complex. A reasonable adjustment can mean being allowed more instances of absence than usual before formal action is taken, being allowed time for apptmts etc. It doesn't mean they have to find her an alternative role or remove bits from her role if it's not reasonable for the business to accommodate this. Severe asthma can be classed as a disability but she still has a contractual obligation to perform her role.

She needs to go through the detail with someone from the union as she has a right to be treated fairly and the business has a right to end a contract if they have made all reasonable adjustments, treated the individual fairly but they still cannot fulfil the job role. Maybe taking on a job that involves manual handling of heavy stock was a wise move with her condition.

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