Leave now or wait

[interview1012]

Long story and I need to be vague for anon reasons
Due to have a ill health meeting (first one, had 1 prior sickness meeting a year ago)
I suspect I will be dismissed. In the job 9 years. Manager holding the meeting has stated "unless you have something to go to, wait and see how the meeting goes"

I have an interview offer for another job
Do I leave or wait? I would honestly rather stay but...
I will get 9 weeks notice pay if dismissed

From your vague description you have had one ill health meeting - was the absence for this a short or long one? Serious? Eg Cancer?
If you think that you will be dismissed for another period of illness - why is this?
Given that there is obvious background to this over a period of nine years - are there grounds for constructive dismissal?
Otherwise wait it out, get the payoff and insist on a decent reference.

I have an underlying health condition declared at interview which causes me to be severely immunocompromised
Since then I have been diagnosed with a condition that requires surgery (not related) and had to wait 18 months just to see a consultant. My operation is due this year but no date yet and is expected to massively relieve pain levels

They said the second condition basically wouldn't count for sickness

So say my triggers are 6 absences
I have had 5 unrelated
5 for the second condition

So if I didn't have the second condition I wouldn't have triggered and I was honest and didn't lie and say I was off with the second condition when I wasn't

It skips all the sickness stages to ill health capability. All short term absences, a couple involving a&e visits. Total 25 days

I think a telephone chat with ACAS might be worth a try. You need to be aware of your rights in a situation like this unless you are already a union member and they can help you.

I'm a union member but first time I have used them, my rep seems a bit overwhelmed with the amount of work he has on and had said just to let him know when the meeting is

They are not at all likely to dismiss you at the first stage. And if I am reading this correctly this is a first stage - you haven't had anything in a year, and it would be very unususal to have a year between stages. I can't see any tribunal saying that they are acting reasonably to skip straight to the final stage. Nor would resigning save you anyway - if it is your "record" you are worried about, it is all already on it.

You may as well go and see what happens, and put your case. And for union reps this is bread and butter stuff - they won't worry about it too much until closer to the meeting, then they'll check over your record and talk to you about it. Sickness meetings are rarely "complicated" in that absences are facts not in dispute, and there is either mitigation or there isn't.

Out of interest, what does your sickness absence policy say about the process?

Main bit of it

You may be supported through the capability process due to ill health
Your manager may arrange a formal meeting should you reach a time where you can't complete your role
Dismissal would be a last resort (it mentions redeployment but there is none of that)
This will follow a similar pattern to capability stage 3 sickness

Capability stage 3 sickness says objective achieve or dismissal

But how have you ended up at stage three without going trhough stages 1 and 2? What support have they given? Has this affected your performance?Are we talking about disability related sickness here? Have any adjustments been made as a result of disability related sickness?

Because they're saying it's capability for work via ill health it skips straight to 3
Yes, I fall under the disability bit

Very few adjustments that can be made annoyingly

The second one I am waiting for an operation for means I have random excruciating unpredictable pain that lasts anything from minutes to a couple of hours which I need to take very strong pain relief for (morphine patches usually)

Can the first condition be considered a disability under the act (lots of long term illnesses are)? If so, they can't count those absences for your triggers.

Yes it can, I'm on long term meds for it and see a consultant every 10 weeks and it's incurable
The equivalent would be my immune system is equal to someone on chemotherapy
But they can count the sicknesses, I have checked everything and read and re read and I can still be sacked despite a disability

Good lord that absence is nothing that i could imagine would be classed as ill health! Definitely take your union to this meeting.

Sorry should say those absences are in a rolling 12 months

Go on acas website.

There's a bit about how increasing the trigger point (ie the number of days you can be off sick with your disability before absence management kicks in).

So if you get day ten days for regular sick absences and a further (however many) related to your disability, it makes the trigger point more. And they should work with you to try and out measures in place to get you back to work.

What do you work as? What is the disability? If you could work from home or do an office job instead of being a shelf stacker or whatever it could help.

I do work from home already
The disability is the condition which makes me severely immunocompromised plus the second condition which I'm waiting on surgery for

They said the second condition basically wouldn't count for sickness

They said what?

Noooo I phrased that wrong

They said if I was off with the second condition it was ok, they wouldn't count it in to triggers
But other stuff would
So the reason I've triggered is I was bloody honest about what I've been off with

I am still a bit confused by what they are doing, but I simply cannot see how they think that - assuming you have correctly understood what they are saying - they can get away with skipping straight to the end of the process over what appears, at most, to be 5 or 6 reckonable days. Although part of my confusion is that you say they have said that disability related sickness is not counted (have I understood you correctly) - even at 12 days sickness, jumping straight to dismissal is exceptionally weird (and very, very sticky for them).

@Onlygoneanddoneit said Can the first condition be considered a disability under the act (lots of long term illnesses are)? If so, they can't count those absences for your triggers. But this is not true - it's a myth that lots of people believe. Some employers may treat sickness differently if it is related to disability, but most do not, and so adjustments to the number of days / occasions before the triggers are hit is the most a tribunal would expect. Only a tribunal could decide if the trigger points are reasonable or not, but they seem very low to me, unless there is something I am missing. I recently retired (and am disabled) and our organisational trigger was 9.5 days or 3 occasions - mine was 16 days or 5 occasions. And that was considered "tough" and may not have stood up to external scrutiny (although to be fair, I never used them anyway so it wasn't tested). Given your circumsatnces I might expect a "normal times" higher trigger, plus a "until surgery" interim amount a little higher than that.

You are right - although it's another myth that won't die - diability does not protect you from being dismissed. But it does mean an employer must jump through more hoops and be very careful before handing a potential disability discrimination and unfair dismissal case. Based solely on what you have said here - and there's obviously a lot of absent information - I just can't see how they expect to get away with a dismissal. In fact I would probably have lodged the first tribunal claim on them jumping straight to the end of the process!

Can I ask something blunt? You obviously don't have to answer. When you are in work, does your condition make your performance bad - is there some other factor here? That still doesn't excuse how they appear to be progressing it, but I simply cannot understand any employer being this stupid (with the exception of a minute employer with no HR and no clue).

Definitely seek advice from acas , cab and union

Seek advice as others have already commented.

If you have a disability/long term health condition your employer needs to make sure they follow the law.

@EmmaMaria no, although I do have reasonable adjustments which are very minor and no not a small business

I had an OH report done and the decision was that condition 2 won't count but anything else will trigger
So I've been punished for being honest

The meeting is remote on zoom

Unions generally say that any health condition declared to occupational health , employer needs to ' consider '

I just want to get in bed and stay there, feeling quite low thoughts about it

Be kind to yourself
Youve been there 9 years
You also have your union with you

I honestly think they are on really rocky ground then. What you are describing and based purely on what you are saying (it isn't that I distrust you - it's just that these boards are limited / limiting) I simply cannot believe that a tribunal will support them if they dismissed. There are advantages to Zoom you know. It's ever so easy to forget to turn your phone off recording....

Of course it is possible that what your manager is telling you is that you shouldn't do anything preciptous because they know you won't be dismissed, but can't tell you that. It happens.

But in the mean time... you absolutely wait until you are dismissed. You never go quietly. And make sure that your union rep understands your disability - and I underline it, I want you to ensure they understand your disability. They need to know that it isn't affecting your performance, that you have had very little sickness, that there is an agreement that some of that is discounted, etc. And that you have not had stage 1 and 2 meetings. Make it clear that you are fighting, and you WILL go to tribunal if dismissed. I don't know which union we are talking about, but with their support or not - FIGHT!!!! I am going to say this again - based purely on what they are saying - I think you have a good cause to make a claim, and they very well may settle anyway.