HR

[NameChange101113]

I was given a letter to attend Stage 3 meeting regarding absences due to my disabilities, where it stated I could potentially be dismissed. I asked the HR officer if I should resign, since I’d probably end up being dismissed anyway.

She re-assured me that I wouldn’t be dismissed because if the employer wanted to dismiss me, he’d call me “into his office and do it that way.”

Long story short, I ended up being dismissed. I feel so stupid for believing the HR officer. I feel so wronged that she told me I wouldn’t be dismissed, then ended up having my contract terminated immediately.

Do I have any grounds to attend a tribunal for that issue with HR? I’ve already decided that I’m going to make a tribunal claim for disability discrimination anyway (for other reasons that I haven’t mentioned).

I had worked there for 3 years btw.

Nope, I wasn’t given a copy at all. It was completed online by my line manager in front of me.

The company retained my second probation review, where they passed me. They apparently do not have the first probation review, where my probationary period was extended for a further three months.

I worked with early years

I worked in education

Op, nobody here can advise you wether what your workplace did was reasonable or fair without more specific information

1. Your workplace do not have to follow OH recommendations if this makes your job unrealistic.
2. The have the right to dismiss you for sickness that is unacceptable under their policy.
3. If you cannot do the job they need you to do, dismissal was always coming they've just used sickness as the reason to do it.

@Punkrockprincess You’re absolutely right.

But I found out from my SARs, which were emails from HR to the employer stating that the reasonable adjustment they told me were implemented, were not actually implemented at all.

I know that, but they did not follow a fair procedure. Another colleague had more sickness-absences than me (none of the absences were disability related). Our former employer did not even invite them to a Stage 3 meeting, despite them having 18 absences over 9/10 months (the odd day or two off each time). This person had more absences than me, again, which were not disability related, however, most of my absences were disability related… I got dismissed, my colleague did not.

Also, they did not request to see my medical records or even attempt to change my job role. They had advertised a number of job roles, but did not even explore the potential of me moving roles.

I could do my job, and I did it well. I had excellent feedback in my meetings with managers. I also had very good feedback from customers. My managers said they were always happy with my progress.

This you op?

https://www.nottinghampost.com/news/local-news/nottinghamshire-school-unfairly-sacked-disabled-9453875.amp

Nope, not me!

Update: My tribunal claim is progressing and we’re preparing for the preliminary hearing.

My case is strong because my former employer did not obtain up to date medical evidence, nor even ask me if he could obtain my medical records from my GP.

My former employer did not even look into re-deployment… During my dismissal meeting he told me that “there are no alternative roles for you”. When they advertised several suitable roles a few days before my dismissal. (Think office roles being advertised when I spent a number of years working in a very similar role) plus relevant qualifications… Former employer clearly didn’t consider it, and clearly didn’t look at my CV. It looks like he automatically ruled it out 🤷🏻‍♀️

Fingers crossed for a speedy resolution in your favour.

They absolutely should have discussed those roles with you as a suitable alternative. And them not basing their decision on up to date medical information is shocking, that's the first thing they should have done.

Good luck!

Thank you. I’ll continue to update the thread if anyone is interested.

I’m very confident in my unfair dismissal and discrimination arising from disability claims in particular… Though there are other claims too…

My former employer won’t agree that I’m a disabled person under the Equality Act, so I need to write a disability impact statement 🙄

@NameChange101113 That's frustrating. Although I suspect if they accept that you are disabled, they are going to have a very hard time defending themseves against your claims, so it's possible this is going to form a key part of their defence for their actions.

I'm not saying that to put pressure on you, I imagine you are under a lot of stress right now! It's just worth thinking about when you are drafting the statement. You may also want to make sure you have a good set of evidence to show that you are disabled under the legal definitions for employment purposes, and that you have advised them of this. I know up thread you said you had told them several times, so make sure you have the evidence of that.

Good luck with all this, I know it's phenomenally stressful to go through something like this, and from what you've said they deserve to be taken to the cleaners.

that's pretty weak from your union. What are they doing now to support you?

Thank you so much. They’re resisting everything that they can, so I’ve got a fight on my hands. I know that I do have a lot of evidence.

That reminds me that I need to continue writing my disability impact statement!

Sorry - did you mean that the respondent may defend themselves by claiming they did not know I was a disabled person?

Either that they didn't know, or that you don't actually meet the threshold for being considered disabled for employment law purposes. I'm just speculating obviously, but I can't see any other reason why they would refuse to concede that you are disabled.

Thank you.

I’m sure they did know I’m disabled because they knew how my conditions affect me. (Think being sent home due to panic attack) and the fact I told them in writing how I’m impacted, which can be evidenced.

I’ll make sure to write about these in my disability impact statement

I am a bit late to this one but if you want any help OP please feel free to @ me! (I’m an employment lawyer)

It sounds like it has potential from what you’ve said here and there are a few red flags with how they have dealt with it. FWIW I act for both claimants and respondents and I don’t think I’ve ever conceded disability on behalf of a respondent (I only would if it was blindingly obvious or an automatic condition). It’s just a hurdle to jump through and if they don’t concede after the impact statement then they could be at risk of aggravated damages if it’s obvious enough (but obviously it depends on the statement).

Disability is actually a really low hurdle for claimants to meet. Just make sure your statement addresses everything, not just work - so showering, driving, bathing etc…

They sound like an appalling employer. It does even seem like you had all that much sick leave. Surprised they succeeded

Thank you, I feel so much better about that now

I didn’t, really. I know of other colleagues who weren’t subjected to the same treatment that I was, despite having more sickness absences than me.

I think they wanted me gone, and that was their chance. They probably thought I wouldn’t challenge them due to my shy nature, so they were willing to risk it. They were wrong

@MrsPinkCock Theres something that has been bothering me. As I’ve mentioned previously, I was dismissed due to my sickness absences. I believe they took me down the capability route, that’s what they have pleaded in their list of issues anyway.

My issue is, after I was dismissed - I appealed and highlighted that I believed I was discriminated due to my disabilities. However, when the respondent responded to my appeal, they had accused me of performance issues (these performance issues had been resolved previously and I was given excellent feedback during appraisals etc.)

I don’t understand why they raised those past issues because not only had I resolved them previously, but it had nothing to do with my dismissal anyway? The respondent made it perfectly clear in my stage 3 meeting that it was about my absences only…

Why do you think they had done this? This has been confusing me for months.

It’s hard to say. They could have been pre empting a defence by essentially suggesting that you would have been dismissed anyway for poor performance. It’s a common Polkey/contributory fault argument.

If the dismissal is automatically unfair though, they are prevented from raising that as a defence. It’s only relevant to standard UD claims.

Thank you. Are they able to raise that as a defence at tribunal though? Considering it was a capability/sickness absence dismissal, they didn’t go down the performance route when dismissing me

They can raise it along the lines of “had she not been unfairly dismissed for capability, she would have been fairly dismissed for poor performance”, but it might not get them far. It would only potentially help them if the dismissal was unfair, but not discriminatory. They’d also struggle to show it was the reason for dismissal, so it would just be a fallback position (and not a strong one).