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

My experience of dismissal and then ill health retirement is that emotionally is was awful for about a year but I did know it was the only option in the end.
I realised that I was not well enough to work and that work did not have to make every adjustment recommend, that the business had to be profitable.
Have you took advice from your union - they helped me through the process (it helps to see it as a process and not a personal issue). It's not that you're bad at your job it's just not possible to undertake presently.
Dismissal and ill health retirement are two different processes. It's stressful however you can ask HR for the process and what will happen at every stage. My actual dismissal meeting wasn't as bad as I thought as by then I'd accepted it was inevitable as I'd been through the process - allowing the process doesn't mean its inevitable either as they're looking at the possibility of you working.
Can you access some work place counselling or do your union provide this? that may help you go through the process.
Also look into applying for benefits PIP (can be applied for working or not), esa (if you're no longer being paid but unable to work), universal credit - because it takes along time for everything to sort out - I was dismissed in the April and it was June before I got most of my benefits and pension. The process had started at Christmas.

is it disability discrimination not to put in reasonable adjustment such as wfh

No, it isn't. You can't determine what that "reasonable adjustment" is. You can't demand to wfh. The employer will have their reasons (whether you agree with them or not) why it was refused.

You have to get out the mindset that your employer "gave" you a heart attack. You have health issues which have made it difficult for you to do your job - and that may include coping with some difficult performance management conversations.

if an employer doesn’t put in place reasonable adjustment and has not objectively justified it and you get worse then... it’s on them

Unless it's actual negligence, then no, it isn't "on them".

@TheConifers

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

A torn valve is not a heart attack. They are two very different things. What treatment did you have for your torn valve?

It sounds like you've had many health issues over the past few years, if OH have produced 10 reports. OH can make recommendations, but that doesn't mean an employer has to implement them. It may well be that you can no longer continue doing the job as the reasonable adjustments required for you to do so would be so big that they're no longer deemed 'reasonable' for the employer.
Just out of interest, what is your actual disability? Also, what is your actual job? Have you had advice from your Union?

Op, you can request adjustments, the employer does not need to agree to them, they will have, or will create a reason why they did not wish the job done from home.

You can speak to an employment lawyer but be very careful here, it seems your employer has allowed this situation to continue for an extensive period of time, before moving to capability termination, so many many adjustments have been made already.

Your medical notes will need to be made available, it is unusual for a specialist to attribute the cause to purely stress as you’re saying, and it’s not really clear on what benefit working from home gave you over being in the office, in terms of your disability.

Hi OP,

These situations can be advised upon from three very different points of view. People in HR will inevitably take the employers side. Employment lawyers will be fairly negative about your chances without all the facts and T.U reps will tell you to go straight to tribunal.

My advice is

1. to either speak to your union rep or join a union today.
2. Complete an ET 1 to get the Tribunal claim going.
3. Once it has begun and accepted there is an 'opportunity' for mediation. Mediation is not an obligation. But looks pretty poor in an employer if they don't engage.
4. If mediation is refused and/or you can't find agreement . You can then carry on to the tribunal hearing.

Tribunal fees have been abolished. So bringing a claim is free.
In a very small minority of cases you could be asked to pay the employers reasonable costs if you lose. However this is only if the tribunal believe you have lied or misled them or haven't cooperated at every stage.

It is incredibly common to represent yourself at Tribunal. As legal aid has been severely restricted. HOWEVER - if your case is accepted for tribunal - on the grounds of discrimination because of disability then you will qualify for legal aid if you earn less than £2657 per month and savings of under £8k.

If you belong to a union they will advise you once they have ALL facts of the case.

People are very keen to tell employees that it's perfectly fine to sack someone if they can't do the job. Which is true to an extent. The 'capability test' however does not permit employers to discriminate in the grounds of a protected characteristic. (In this case disability) It is about what is 'reasonable' and you can't get that answer from the internet. You need proper advice.

If you have no union then ACAS run an advice line. Google them.

However the SAFEST route would be to take all the facts to a specialist employment lawyer. One that is experienced in disability discrimination. Pay for an hours worth of advice . If they think you have a reasonable case at tribunal then get legal aid to fight this .

I don't think anyone here is going to be able to advise you on whether in the specific circumstances, refusing to allow WFH was reasonable. We'd need to hear the employer's explanation as to why they didn't agree it. We also are not going to be able to give an opinion on whether the WFH would have enabled you to get back to your contracted hours.

What I can say is that a year of reduced hours is not a 'phased return'. You do them at a point the person is fit for work, or almost fit for work, to ease them back in. Reduced hours for a long period is an adjustment.

From their point of view they'll say they made a reasonable adjustment of reducing your hours, and that this is working.

I assume they aren't disciplining you and are instead putting you through a capability process. Regardless of the cause, at this point it seems reasonable to do that. It's just whether you have any kind of claim because they should have done things differently in the past, and as I say, I really don't think it is possible to advise you on that.

@Todaythiscouldbe

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.

It is not relevant when the OPs disability was declared, either at recruitment stage or any time since in the 7 years of employment. Anyone can become disabled at any time in their life and should be supported according to the law and in a way that is achievable and affordable. Proving such support or lack thereof, can be expensive and protracted.

So do I just accept it and let someone else suffer or do I try and fight it?
OP as I said at the start, it wasn't and still isn't clear from your post what you are looking to achieve. Whilst it's admirable to care about other people, you are only going to give yourself more stress (on top of having suffered a heart attack? Is that wise?) if your dispute with your employer is to save others from a similar treatment, when I'm sure you know they are unlikely to change their attitude.

The fact you have been on a phased return for 12 months, you can bet your last penny they will use to demonstrate the extent to which they supported you. You may believe otherwise but they will use their legal resources to argue this, and you will have to use your own funds to pay for any legal action, which will become unsustainable. Even getting a settlement agreement will cost you money as you will undoubtedly need expert legal advice for this situation. If you have household insurance legal cover, you could try using it.

If the past 12 months has been on full pay, or full pay 6 months, half pay 6 months, then they have done more than their statutory obligation.