HR

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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.

Thank you. I’m just trying to understand the “unfair, but not discriminatory” and the last part!

I have my performance management review, which was full of praise (the last one was conducted a week prior to my dismissal) and I also have lots messages praising my work etc. So I’m hoping I won’t have to be concerned about a Polkey deduction…

Respondent won’t concede disability.

Even though I’ve sent them multiple screenshots of messages I sent them saying I won’t be in work on what days due to my health issues. I’ve also sent them my GP reports, diagnosis, the medical reports showing which medication I take daily. Plus my disability impact statement where I explain my symptoms and how they impact me day-to-day and what would happen if I did not take my medication 🙃

Did they explain why they aren’t conceding?

Do they have a legal rep?

@MrsPinkCock Yes, they’ve got legal representation.

They’ve conceded two of my disabilities now, but won’t concede my third disability and said it was “unpleaded”, even though I mentioned all of my disabilities in my ET1. 😩

They knew of this disability too, thankfully I’ve got evidence that they knew.

@MrsPinkCock I’ve received correspondence from the respondent saying that I did not provide medical evidence prior to my dismissal. However, they had never asked me for any medical evidence prior to my dismissal.

Is it true that the onus is on the respondent to get permission from me to access my medical records? They had never asked me for any medical evidence at any point…

It’s mainly on the R. You don’t have a positive obligation to disclose a disability (although it often helps if you do). Whereas if the R “ought to have been aware” then that is classed as constructive (and therefore actual) knowledge that they knew about the disability.

An ET will almost always expect an employer to make appropriate medical enquiries before dismissing anyone if there is a probability that they are disabled. That usually means either an OH or GP report (the latter usually involving access to medical records) although the records themselves wouldn’t usually need to be disclosed - a report would have been enough!

If they made no enquiries whatsoever they’ll likely be heavily criticised.

Thank you, so much!

I had one Occ Health report, which was done 10 months prior to my dismissal. However, I had that after needing time off due to experiencing heightened MH symptoms because I was bullied by my previous line manager.

So it would have been outdated because it wasn’t relevant at the time of my dismissal, I assume? I was declared fit for work btw.

That was the only piece of evidence they had. They certainly did not ask me for medical/GP records or report, though…

Did it give a view as to whether or not you were disabled? If so, it’s potentially relevant. But even if it didn’t, ten months is a long time and enough time for a condition to have become a disability.

They should have sought up to date medical evidence to determine if dismissal was a reasonable and non discriminatory option. They didn’t do that, and that is likely a serious failing.

The Occ Health says “likely to be considered disabled under the Equality Act 2010.” R knew of my disabilities months before then though. Thankfully, I have evidence of this!

Just for your own understanding, an OH practitioner can’t make a legal finding as to disability. Only an ET can do that.

I had an OH report returned in recent weeks where the practitioner suggested the individual was likely disabled, yet completely failed to interpret one of the key legal tests correctly. So the OHP on my case was frankly useless.

That’s why I said it’s potentially relevant, rather than any kind of guarantee.

If they’re continuing to dispute disability though, and there is clear evidence to the contrary, I’d put them on notice you’ll seek to claim aggravated damages for their failure to concede and/or a preparation time order based on their unreasonable conduct. If it’s really obvious and the ETs time is wasted in having to hold another hearing, you could well be successful.

Thank you.

It turns out that the respondent doctored evidence after my dismissal and submitted it to the ET as evidence.

I questioned them about this and their solicitor said that the doctored version (apparently used for their own knowledge) was disclosed on accident…

Surely it shouldn’t have been doctored in the first place?!

@MrsPinkCock

Just an update.

The judge has held that my physical disability was indeed pleaded in my ET1. The Respondent’s barrister tried to request an additional PH, but the judge was very firm and said he had already reached his decision, so there would be no need. The barrister got very flustered and got himself tied up in knots.

The judge also held that there was a continuing act of disability discrimination starting the first time they refused my reasonable adjustments, ending in my dismissal. Time has been extended by a year. I’m very pleased with this.

I thanked the judge because we have made excellent headway in our PH and even discussed case management orders.

The final hearing has been scheduled for Summer 2025.

That is really good news. They’re potentially on the back foot now. Mid 2025 isn’t bad for a hearing either - I have two currently listed for 2026!

I think they are because they’re trying to make out that I was dismissed for “performance/capability”. I thought it was interesting that they didn’t disclose my dismissal letter in the PH bundle too. I’m not sure if that was due to incompetence or if it was deliberate, but it was interesting nonetheless.

I consider this a lesson learned now, so I will be carefully scrutinising the final hearing bundle now.

2026? Gosh!

@MrsPinkCock

I’ve received correspondence that the respondent does not believe I’m disabled by way of my physical disability. (They’ve conceded my other two disabilities).

I made sure to discuss the substantial impact on my day-to-day activities e.g. it causing me to be late for work and college because I had to frequently stop and take my medication, how I struggle with walking up the stairs and get breathless causing lateness so I would miss the first part of my lessons at college too.

Also how I wake up during the nights gasping for breath, which impacts my concentration during the day and not able to concentrate on what I’m reading or when I’m watching TV. At work, it means I have to ask for clarification after meetings.

I explained how time consuming it is to take my medication and how dangerous it is if I was ever without it and how it can be fatal etc.

I’ve sent them a load of evidence, messages to/from my line manger telling them I was going to be late and why, my care plan, prescription documentation. Plus, WhatsApp messages to/from the respondent when I was rushed into hospital due to not being able to breathe and I informed them that I would not be in work that day. Also evidence of my diagnosis from when I was a year old.

The respondent have argued that the impact of my disability is not “substantial”…

Does anyone know what happens now? Because I honestly have no idea

I assume whether the judge will decide regarding my disability of asthma?

Is there likely to be an additional preliminary hearing, even though there has already been two? Or will the judge decide based on my disability impact statement and then inform both parties prior to the final hearing?

I’m not sure what will happen now and I’m worried about there being further delays to proceedings etc.

There will only likely be a further PH if it would save the ET time in the long run. I can’t see that 2/3 disabilities conceded would mean a PH for 1/3 would be proportionate - they’ve conceded you are a disabled person, so my guess would be they will just deal with the whole lot in one go now.

Usually an Order will specify though - the last one I has advised that the R had to reply by X date whether we conceded disability, and if not, it would be dealt with at the full merits hearing. I’d give your paperwork a check!

Yeah, they’ve conceded my two MH disabilities, but not my physical disability. There are no further CMO in relation to disabilities now, they’re all in relation to document disclosure, the bundle and witness statements etc.

Ahhh. Okay - I should prepare for that specific disability ready for the final hearing?

I think they’ve refused to concede it to put up an extra hoop for me to jump through tbh.

My disability impact statement was very thorough and I made sure to consult the Appendix to the Guidance list, in relation to when it would be reasonable to regard an impairment as having a substantial impact on day to day activities. I discussed three on that list and how it impacted me e.g. lateness to college lessons, so I’d miss the beginning of my lessons. I even discussed other things, such as my difficulty breathing due to chest tightness and how it impacted on my ability to sleep.

It appears that the respondent does not believe that not being able to breathe properly or sleep properly etc. is a substantial adverse affect on my day-to-day life. If those examples are “minor or trivial” then I dread to think what they believe is substantial 😁

Also, will the judge make a decision regarding my third disability from reading my disability impact statement and evidence at the final hearing?

Or will I be questioned (verbally) at the final hearing in order for the judge to decide whether my third impairment is a disability?

Is it likely* sorry!

unhelpfully I think the answer to that is either, or both!

i think you need to address it in your witness statement too. Then the judge can ask questions if they see fit, as can the other side.

That is helpful, it means I have a head-start, so can prepare for both outcomes.

Oh crikey. My witness statement is already 30 pages long 🫣

Thank you so much for helping me

@MrsPinkCock Received an email from the tribunal.

It stated:

The issue of whether the Claimant was, at the relevant times, disabled by way of (my physical disability) will be decided, alongside the other issues, at the Full Merit Hearing.