Employment Lawyers / Advisors out there...

[TheConifers]

Hi guys,

My first time posting a message but I frequently come on here to read some excellent advice you guys give.

I have recently had a heart attack at work because my managers wanted to take me down a disciplinary route after I did an extended phased return to back work. This was made worse because my migraine specialist got cancer and because all hospitals were closed for treatments due to covid
The shock of losing my job gave me a tear in my heart. My specialist said it was due to extreme stress which I was under.

The employers are justifying it by saying that the last OH report states ‘that they don’t know when I ill be able to get back doing my daily six hours’ and so I face dismissal or I’ll health retirement. During the phased return I was doing more than 3 hours, sometimes 6 hours etc.

The trouble is it’s not my fault that because of covid all hospitals are shut or were shut for anything non covid related

Secondly, I have had numerous OH reports, all of which suggest3d that I simply needed working from home because of my disability. This was a cheap solution but ignored over the last 10 reports (yet they want to ‘sack’ me cos of the one they like) and had they put it in place in 2017 then my situation wouldn’t have got so bad resulting in near death.

My story is so much bigger than this but I just need some help please cos as a single mom I am so scared and I feel discriminated against but am scared to go to a tribunal (I haven’t been dismissed yet) in case no one believes me. And I get left with nothing.

Can someone help me please

Do your employer recognise your health problems as a disability under the equality act?

I'm struggling to understand your rationale and what you want to achieve.

Are you saying your employer caused your heart attack which was ultimately attributable to them refusing to let you work from home, or was the heart attack due to them trying to terminate your employment due to performance? Sorry to boil it down to such simplistic terms but if you aren't able to be clear about what you believe are your employer's wrongdoings it will make it hard to hold a sword of Damocles over them, they'll just dig their heals in further.

I agree with you that a tribunal case based on information you've given doesn't hold water and you'd come away with nothing but more stress.

Your best bet would be to try and negotiate an amicable departure with a modest Ex-Gratia for a swift resolution.

How long have you worked for them?

Hi

I am classified as disabled and they have not allowed reasonable adjustments for my disabilities and as a result those disabilities have got worse.

Secondly, yes, I am saying that they only wanted to get me out because they ignored all previous OH reports to help me but the one that they thought in their eyes could get me ‘out’ they all of a sudden wanted to use against me and called a disciplinary meeting.

This led to my heart attack.

So, I am saying by ignoring OH they made it worse and by selecting the one report by ignoring others they discriminated.

EnglishRain _ my employers is a massive multi billlion pound budget holder who has a woeful record on discrimination.

They knew I had a disability but would say I was ‘swinging the lead’ and mine wasn’t a real disability because it was migraine and spinal/ back related

Sorry I have worked for them 6 years

Adjustments work both ways and also the business need to be able to accomadate it with out a massive negative impact on them so they are in there rights to refuse if they can prove this.
OH reports are guidance you don't have to follow them . I find people will tell them anything to get there own way and because OH has written down they think we have to follow it .
It does sound as though it's being going on for a long time and TBH you employer has no idea and confirmed by OH if you will ever be able to do you job you can't run a business like that.
Without anymore detail WFH sound more like a preference you told the OH rather than a medical need .
Whilst the disciplinary is difficult don't know you would be able to prove that definitely caused your heart attack.
there's a number of ways this can go

non culpable dismisal basically you can't do the job they need and employed you for.

you part ways with a compromise agreement a reference and sometime few months pay .

Sickness policies are not about the individual cause of the illness it's about managing attendance so the business can function .

To employ a person there is obviously a need and work for them .If someone has a high level of sick and no gaurantee the person they employed will ever be able to do the work they are employed for. Having to cover the work by other means this situation can't be just left it's unsustainable and has to be dealt with sorry .

thanks r walker

The WFH was a simple reasonable adjustment which could've been put in place back in 2017. They ignored it and basically wanted me in work at my desk which for someone like me made my situation worse, led to time off, then exasperated my back condition. All the while OH, Doctors and even specialists were saying 'I am capable of work' just need a WFH reasonable adjustment. BTW my work does not require anyone to be in... covid 19 proved that. So only logical conclusion is that they just didn't want to allow me a very cheap and easy reasonable adjustment which in the end exasperated things for me. I feel they just didn't accept i was disabled because of an invisible disability and always used to say 'its not like you are in a wheelchair'.

To note, i was in work albeit on a phased return.

Don't you think its strange how they ignore all other OH reports and dont put in place a reasonable adjustment and yet rely on the one OH report that says 'we dont know how long this situation will last because of covid and because I need to try medication/treatment which may or may not work'?

My point is, surely you can't be selective with the reports you rely on? Is it fair to keep ignoring 9 and only rely on the 10th because it backs up your narrative (in my case wanting to get rid of me!)?

There are two issues. Firstly them refusing for you to work from home when initially requested. On which health grounds was it requested? What was the reasoning for them saying no?

Then there is the issue of stress caused by them leading to the heart attack. Firstly, employers are entitled to dismiss people if it is assessed that they are too I'll to perform their job. They if course would have to follow correct procedures. How long were you in a phased return? How long had you been off sick if at all?

Proving that a heart attack was caused by a specific stress is extremely difficult. Health professional will often say that stress make conditions worse, but that's different to making it stand up legally.

Hi

WFH was recommended migraine and spinal disability several times but I was declared as capable for work.

Request was ignored for no reason. Instead they refused to believe I had a real issue.

They would always say that I needed to be in the office. Again I couldn’t see why and I was left exasperated all the time with their games. I tried everything to get it but Only reason given was my job description which was changed by them anyway.

I have been in phased return since July 19, but in the time and despite numerous requests verbal and written minimal work was provided. They just left me to rot!

Then out of the blue when they got the report they wanted they thought bingo out she goes!

By the way I was actually getting better and this was confirmed but they said they weren’t interested in any more OH reports. I felt they had already made their minds up. This is what they always wanted and they got it! I was so frustrated I had a heart attack!

By the way my heart attack was nothing to do with cholesterol or blockages it was simply a torn valve due to severe stress as confirmed cardiologist

12 months or just about is an extreme long time for a phased return. This would give them ammunition to justify that you were not capable to carry out your job any longer. Did they ever offer for you to lower your contractual hours?

Once again, your consultant will not be able to say that stressed definitely caused your heart attack. He could say that it likely contributed to it but not caused it. Then there is the issue of proving that there was no other stresses in your life at all that could also have contributed.

Its very hard to win cases like this and extremely stressful. You could start the procedure and see if they'd offer a deal but again, even if they do, it would be likely to be late in the procedures. It could on for many months. Are you sure you could cope with that level.of stress?

Hi

Thanks

No nothing else offered. Ever!

I was never warned about this or anything... just a complete shock and even the line manager was all nice to my face before and then all of a sudden he hit me with loss of capability out of the blue!

I just think people say they are disability positive but to be honest didn’t really consider helping by way of reasonable adjustment, being moved, asked to lower hours, do another job etc etc they just try and sack you.

That can’t be right.

So do I just accept it and let someone else suffer or do I try and fight it?

Yes it’s stressful but justice is worth it surely otherwise we may as well let people walk all over us???

Sorry I’m just emotional!

I'm sorry for your situation. I'm afraid the company has already been very generous with adjustments of reduced hours for such a long time. In my organisation an adjusted return to work can't extend beyond a month.

I know it feels harsh but organisations need workers to deliver the work they are recruited for. If you are unable to deliver then it's reasonable for the organisation to end your employment, i know it feels harsh to you but if you can't deliver all the hours you are employed for in the way your contract sets out then the company isn't wrong to do this.

I hope you are able to get I'll health retirement and can relax in the future

I'm sorry for all you've been through, but blaming a torn valve on your employer is a road leading to nowhere.

Was your disability declared at interview/recruitment stage? It's not clear from your posts if this has been ongoing since you started at the company.

Hi

Yes ongoing and they were aware from start

They also gave me zero work even when I asked for it. There was zilch to do.

So funnily enough if I did my contracted hours and still did nothing I’d be ok.

But doing phased return at 2-3 hours and doing no work because they have no work is not allowed.

Weird!

Question is irrespective of views on phased return, is it disability discrimination not to put in reasonable adjustment such as wfh. I mean it’s cheap and as we all know from covid it works.

Secondly, surely the argument is that if an employer doesn’t put in place reasonable adjustmentA and has not objectively justified it and you get worse then... it’s on them!

Surely there must be a duty of care.

Consider this...

You hire someone

You have no work for them

They have a disability

They ask for wfh

You ignore it

They get worse

They lose their mind

They go off sick some more

Surely it’s linked ie their is a causal link to the employer ignoring your reasonable request

And surely one can see that had it been put in place things migh have been different?

This sounds like a difficult situation for you and your employer. Although you feel that you have been discriminated against, your employer would argue otherwise. There is a difference between unfair treatment and unlawful treatment.

Take the issue of WFH. Occupational Health can only make recommendations and it is for the employer to decide whether they can be accommodated. Even though it may be possible for you to do your job from home, your employer may have reasons why they require you in the office.

Playing devils advocate here, what is it specifically about WFH that is the only suitable reasonable adjustment? Using the migraine as an example, if you are doing DSE work, presumably you are using the same type of equipment at home that you would in the office. So why can't you work in the office? Likewise, do you have a special desk and chair set up that can't be replicated in the office? Like other posters have said WFH is often a preference as opposed to a health need and this can be why employers push against it.

On the face if it, with the exception of not allowing you to WFH, your employer appears to have been very accommodating. In every workplace I have been in a phased return is over a period of no longer than 8 weeks, a year is excessive.
If WFH is the only reasonable adjustment that can be made then I assume your employer has given reasons to occupational health why this is not possible. It's not clear why no other adjustments are acceptable though so was WFH the only option given?

I’m sorry but no specialist is going to be able to say that your work caused a tear in your heart.

WFH is not a right - what was the employer’s reason for needing you in the office? Did they make adjustments such as chair and desk for You?

Lastly, phased return of over a year is not usual. I have never heard of it lasting that long.

Also you say WFH is a 'cheap' option. You know that your employer would be responsible for ensuring your workstation and working environment is correct and is still responsible for your welfare? Unless it is the commute then I fail to see how WFH makes any difference.

OP plenty of people here have given excellent responses to you but you disagree with all of them, obviously the only response you wanted was that you are correct and your employer is completely wrong.
Why would WFH help your migraines and i didnt realise that migraines can be classed as a disability. You say this has been an illness you have had long term, before your employment started so has this been an issue since day 1, did you not realise this type of job would be an issue for you?.
12 month phased return to work is incredibly supportive, my employer gives 6 weeks.
You also say you havent been dismissed yet, i think you need to either suck it up and get on with it or accept that you will eventually be dismissed as you clearly can't carry out your job.

Why on Earth were 10 occupational health reports required in the first place?

How come the phased return lasted a full year?

How can a cardiologist state that the year in your heart categorically was stress related, as surely the cause would be multi- factorial?

I'm sorry your job is under threat, but I can't help wondering if your employers have simply lost patience. A full year of dealing with an underperforming staff member, whatever the reasons, would definitely take its toll on a business/employer/other staff members.

WFH is a difficult one. I feed, how does being at home means you can produce work you can't in the office? That's the only consideration they would have to give if there is no policy that anyone can work from home. There can be a lot of abuse with working from home and some employers are reluctant to say yes to one as it then opens the door for everyone else to request it.

Also it's easy to say that work can be done from home, but if you have to attend meetings, see customers etc... it might not be possible on a permanent basis. Also it can be more expensive, providing laptop and VPN for instance.

The difficulty you might face is the fact that they have allowed you flexible arrangements by doing a return to work.

To be very honest, it sounds like they've established that you were not capable of doing your job in a reliable way due to your health, so they would have chosen to give tasks to other people. It's another point in their favour that it is one reason why they had to consider dismissing you.

It might seem unfair but as others have said, you can't expect to demand the adjustments that suit you. They are legally obliged to consider your needs and look at making adjustments to help you perform your job but that doesn't mean agreeing to what suits you best.

Do definitely seek legal advice as there bound to be more to it all than what you've shared here, but on the account of what you've said so far it doesn't look very positive. You say yourself that you are emotional, understandingly but to have a fair chance at a legal claim, the first thing you would need to do is leave all emotions on the side and only think legal and legal and emotionally fair can be miles apart at times.