Disability and sickness and threatened with being sacked

[QuebecBagnet]

Dd has a part time bar job which she’s had for three years. She has diagnosed EDS, fibromyalgia and POTS. Which I believe means she’s covered under the equality act/disability discrimination?

She has periods of being ok and periods of not being ok. For a period of about 3 weeks she’s been having terrible sickness, vomiting most days. Her EDS can affect her digestion. She’s been at the GP twice during this period for blood tests and has been started on new medication. She was sick for about 4 shifts out of six in three weeks, inc a couple where she turned up and vomited so she was sent home. She was not paid sick pay for these shifts

Her boss rang her up the other week and said she was a liability to the company, wasn’t financially viable, was a burden to her colleagues and asked her to resign. Dd refused to resign.

This is a big national, chain company who proudly advertise they’re in The Times top ten employers.

Dd followed this conversation up with an email saying she wouldn’t resign but sadly her boss didn’t repeat anything in writing. Her boss is only a section boss. There is a branch manager. I’ve told Dd to talk to her branch manager and let her know what the section manager said.

Surely if people have a disability they can’t say that? It’s not been that long term an issue, she’s just having a bit of a relapse but she’s been proactive trying to get on top of her health and I’m sure will do. She has months and months of not having any sickness.

When lockdown happened and they needed more gym cleaning staff she happily moved role and went gym cleaning, doing six days a week, long shifts with no sickness so they know she works hard when able to.

Can they fire her?

I think you’d be best to call Acas and, if it’s a chain, it might be worth contacting their head office to speak to HR.
www.acas.org.uk/disability-discrimination

You can fire disabled people if they aren't well enough to carry out the terms of the contract, but if the reason she is being fired is because she's disabled that would be direct discrimination; which is illegal.

However, she'd probably have to take her employer to a tribunal to try and prove it, which can be costly and is ever so stressful. Plus tribunals are backed up for a few years so it probably wouldn't get heard for a few years.

You are right that telling someone to resign is wrong, whether they are disabled or not!

How much absence has she had, and does she received occupational sick pay?

She only works 8 hours a week, normally split between 2x 4 hr shifts. I think she missed 6 shifts in 4 weeks. Might have been 5 shifts. She got no occupational sick pay at all because her manager told her last week she can only have sick pay if she rings in sick before her shift. If she comes into work and is sent home which is what happened then he said she doesn’t get any!

She is normally well enough to do her job. She just had a relapse of her chronic conditions and was poorly for a few weeks due to this.

If she missed 6 shifts out of 8 then that is only 25% attendance rate. Have they spoken to her about non attendance formally? Has she disclosed her disability?

Is there occupational health involved?

They know about her disability. She’s never been referred to OH. Never been spoken to by anyone from HR.

She can be deemed not capable of fulfilling her job role even if the reason she is not capable is due to a disability. However the company need to have followed their official sickness and disciplinary processes.

What was her sickness levels like proper to this?

And also how many shifts did she miss in a row - did she have a fit note?

I’m not sure how many she missed in a row, maybe two. She never got a sick note. I don’t think she was off for over a week, she went back for a shift then missed a couple more.

This is the worse stretch of sickness she’s had. She’s had periods of months and months where she’s worked 6 days a week and had no sickness. But probably overall has more sickness than the average person. I’m going to tell her to start keeping a record.

If she’s sick more than 7 calendar days in a row then she needs a fit note. Does she have a contract or anywhere she can find out about the sickness management policy?

If she’s been there more than 3 years they can’t move straight to dismissal there’ll be a policy they have to follow. She’ll have to follow the policy too and get fit notes where required.

I don’t think she’s ever had a written contract. I’m not sure if she was ever off for 7 days, I’ll remember that for another time though.

By law she should have a contract.

She is covered by the disability act and she definitely needs to start with the in house branch manager. Get her to tell them if this can't be resolved correctly she will contact HR. They should have a sickness and attendance policy so ask for a copy of this. I would also get her to refer to OH asap. What the branch manager has said to her is completely wrong and he is trying to bully her in to resigning. I would also ask to start a grievance against the staff member who called her. Again start with branch manager and move up the line if needed. Some people have such a poor attitude towards I'll health. Where I work if someone has a disability any time taken for that is not counted toward sickness triggers.