Employer - Final Hearing on capability issue

[spellbound20]

Hi

I am on sick leave at the moment.I was going through a massive personal crisis at one point and still havent got over it. But around the same time had a grievance case at work.

My employer took around 9 months to give the final outcome (after appeal).
The amount of time it took caused me extreme stress levels. My mental health and self-confidence has been affected heavily. I suffer from anxiety and depression and under medication at the moment. During the process, I had chased several times to get it done quicker, but never happened. Finally it broke me as I couldnt cope anymore.

During my sickness, I have had 2 formal meetings already.

I have done several occupational health assessments and reports have been sent to employer.
My employer has asked me to join in for a final hearing. I am assuming that will be the nail in the coffin.
They had already indicated that there is a capability issue.

They have been very quick to throw the rulebook/conduct/attendance policy at me, but did not carry on with the same speed during the grievance.

Few queries:

a) Would it be fair to say that my employer also needs to take accountability & responsibility here, as it was unfair to run something like this for 9 months.

Below snippet is from the appeal outcome document that the employer provided

"The timeline
I agree that the timeline from raising the matter formally to reaching this appeal outcome has taken a long time. The delays have not been intentional and not with any intention to cause you further concern.
I am sorry that this incident has had an impact on your health..."

b) Will I stand any fair chance if I take it down the tribunal route for employer breaching their duty of care

c) If it happens that they go down the dismissal route, are they obliged to pay my contractual notice pay (Have a 3 months notice period). I have worked for them more than 2 years.

Thx in advance.

Has your mental health been bad, and caused you difficulties with day to day activities for over a year or likely to be for over a year? It's clearly had a 'severe adverse effect' if you're off sick.

If yes, you would be considered 'disabled' under employment law. They can't sack you for being disabled, if it's your mental health that has led to the capability issue.

It's important to note that the effect of your condition is judged as if you were not medicated/treated. Any positive effect of treatment is disregarded.

OH should have advised your employer whether or not they consider you legally disabled.

www.acas.org.uk/supporting-mental-health-workplace

Having a disability doesn't mean you can't be dismissed for capability - it just means reasonable adjustments have to be made to enable you to work. Ultimately if someone can't do the job they can't do the job, an employer isn't expected to continue to employ someone indefinitely if they can't work.

OP some crucial information missing -

How long have you been off sick?
What have the OH reports said about prospects of returning to work/adjustments needed?
How far off being able to return do you think you are?

In answer to your questions - a breach of duty of care isn't a claim you can bring. You could resign and claim constructive dismissal due to their actions, or if you do have a disability and you feel your employer has not made reasonable adjustment or have treated you less favourably because of your disability, you could bring a disability discrimination claim.

If you are on sick leave you need to check your contract because it will state (or should) how many months before they can start capability procedures, typically 3-6 months. For disabilities they need to make reasonable adjustments but ultimately if you cannot do the job you are paid for they are not under obligation to continue your employment indefinitely. It sounds like they have been quite generous in the amount of time that's elapsed, my contract is 3 months! You can have representation to help you, and theirs very specific procedures but if fulfilled you cannot avoid dismissal indefinitely I'm afraid. The thing to consider is phased return or changing role within the org to one you can do now - is either possible? It would help your case

We start capability proceedings after 4 weeks of absence (small business). Your employers sound like they've been very generous OP.

On your first point - if work related stress cases are caused or exacerbated by an employers actions then yes, there is a slightly higher threshold to be met when it comes to dismissing an employee fairly. However the key question is always going to be whether there is any realistic prospect that you can do your job in the near future, with any extra support in place.

You’re entitled to your three months notice, yes, if you’re dismissed on capability grounds.

However… it sounds like they’ve followed a reasonable procedure in dealing with it (a number of meetings, seeking medical advice, etc) so unless they are wildly ignoring the OH reports then it’s probable you can be fairly dismissed. I’m assuming that at the present time there’s no prospect of a return to work in the near future, though.

As stated up thread there is no standalone claim you can bring for a breach of any duty of care in an ET. A claim for constructive dismissal could be brought if you resigned immediately in response to their delay, but only if it was so unreasonable as to amount to a fundamental breach of contract. A general breach of duty isn’t enough.

Also as stated above, if you have a mental impairment that substantially impacts your daily activities (not just work) and it’s lasted over a year, then you could have a potential claim under the equality act on disability grounds… but unless the OH reports say that you’re likely to be considered to be disabled, that won’t be an easy claim to win, because your employer wouldn’t have had constructive knowledge at the relevant time.

Your best bet to save your job would be to demonstrate that you’re fit to return in full capacity… does the medical evidence (and your own view) support that?

Thanks for all the replies and inputs.

To answer your questions

a)Yes, I want to go back to work. Its painful to be in this situation of despair where there doesnt feel any hope.
I am hoping things will improve in a few more months than how I am feeling at the moment.
On medication and have been referred to counselling.

b) Yes, the employer are willing to follow OH advice atleast until now. Not sure what they might say in the final hearing.
The OH report has stated that "with access to counselling, a return to work in some capacity might be possible in 2 months time"

c) The OH comments has been as follows
1.Is there a substantial physical or mental impairment of the ability to undertake daily activities?
"Yes"
2.Is the impairment “long term” ie has it lasted, or is it expected to last 12 months or more?
"The condition has lasted longer than 12 months.Therefore, in my opinion it is likely to be covered by the Equality Act."

• Would I need to get any certificate from my GP as well to say my condition is likely covered under the Equality act (or) does the OH report suffice.

• I looked around the ACAS site to see if there are any specific timelines employers need to adhere to during grievance investigations, but couldnt find any. Not sure if this has never been legislated.

Thanks again.

How long have you been off sick?

I see that the OH said that the impairment was going to affect your daily activities, did they make any suggestions for adjustments (or was the counselling what they suggested)?

Have you discussed reasonable adjustments (under the DDA) with your employer?

The problem is, that an employer can’t really keep paying you to do a job you can’t do. I would expect that, given the length of time of your incapacity, reasonable adjustments would be discussed.

But if you are still not able to do your job, then it becomes very difficult.

How long have you been off OP? It sounds like it could be more than a year?

Are there any reasonable adjustments right now that would mean you could do your job from Monday if they were put in place?