Tribunal evidence

[Catthew]

My former employer dismissed me back in April due to my disability related absences. However, my former employer still has not managed to fill my previous post, according to my former colleagues.

I’m already going through the tribunal process for unfair dismissal and disability discrimination, so do you think the evidence of them not filling my role would be worth adding to my evidence bundle?

I don’t see that it’s relevant to disability discrimination, no. Unless you want to ask for reinstatement

Op,are you self representing. I am failing to understand how what they do with rhe post, fill it or not, is discrimatory against you. Can you explain?

They dismissed me for my disability-related absences “to ensure the needs of the clients are met.” However they were understaffed prior to my dismissal and clearly they are still understaffed now since they can’t seem to fill my role…

I was thinking from an unfair dismissal point of view?

Op you’re also aware I assume that employers can quite legally dismiss disabled employees. Under capability termination, if the person is not able or available to do the job?

I’m sorry but that’s really not relevant. You need to go through why this is disability discrimination. What reasonable adjustments did you request and they make, what didn’t they do. How often were you off. Could you realistically commit to do the job as per the contract. What process did they follow.

Yes, I’m aware. However, I was able to complete my job. I have never been signed off sick and I had 15 days of sickness absences over my three years of employment with them.

I know non-disabled colleagues who have had more time off for sickness absences than me, but still continued to be employed by the former employer. This is will be evidenced

They have to provide proof that her performance wasn't up to scratch - just like everyone else. They also have to take her disability into consideration when looking at her absences.

If the OP is going down the tribunal route she's probably aware of that already.

Ahhh! Thank you!

This isn’t about performance. Please read at least the ops posts. It’s about absences. They dismissed as her absences meant the role wasn’t being fulfilled as required, as she wasn’t there,

I did thankyou, BUT they still have to take her disability into consideration and did they provide reasonable adjustments. What did they do to mitigate her absences. So its not just saying that she wasn't there it's also WHY she wasn't there.

Are you claiming unfair dismissal or disability discrimination? It’s fair enough for them to argue that they need someone who takes less sick leave to meet client demand. That they haven’t been able to fill the role isn’t relevant.

Both! Please read my previous message

Absences are a “capability” matter- ie whether or not op can do the job. They can dismiss if they reasonably decide she cannot provided they follow a fair process, etc.

They fired you for 15 days over 3 years? Were the 15 days spread out? What exactly did they give as the reason?

Yes. 15 days over 3 years, so I’m arguing that my dismissal wasn’t proportionate. They said they were dismissing me due to sickness absences “in order to meet the needs of the clients.”

Yes, the 15 days were spread out

You don’t really set that out. For unfair dismissal they have to show one of the fair reasons (including capability ie that you could not do the job) and that they followed a fair process. There are different types of disability discrimination- presumably you are arguing direct disability discrimination if you have a comparator?

And there were no performance issues?

I’ve experienced different types of disability discrimination for different events, which I won’t go into because it’s outing. But I am arguing direct discrimination as well, my comparator has agreed to come forward and be a witness at the final hearing.

“Not proportionate” isn’t a legal term in this context tho. Did they give you warnings and go through a fair process?

can you prove they knew you were disabled? You have to do that for disability discrimination.

it does sound harsh but these things are complex so it hard to know if you would have a successful claim

They didn’t have a proportionate means of achieving their aim because of that fact.

Yes, I can prove it. They also want a impact statement from me

Not that I’m aware of! I’ve never been informed of performance issues

It’s hard to see how the fact that they have not yet filled your role is relevant on the facts given. But you should take specialist advice

Sorry. My reasoning is that they dismissed me “to meet the needs of the clients” but they aren’t meeting the needs of their clients because they are understaffed anyway…

Hope that makes sense

I see what you’re thinking, but no op. It’s not discriminatory against you. They can do what they wish with the role when it’s no longer yours. You need to focus on the dismissal and discrimination. Can you afford any legal advice.

honestlh it’s better to pay for an hour with an employment lawyer just to run through it, than go in and get it wrong. Employment law is very narrow and the judge will stick to the confines of the law, they will also not give you advice. Your employer will bring legal counsel, potentially more than one .

Have you asked them to disclose all sickness absence information by employee (with names redacted) for the same period. I would.