Dismissed My Job Due To Absence linked to my Disability

[mummytippy]

Apologies for my lengthy post. I added a post (in May) regarding wanting advice for my employer to look to make reasonable adjustments for me due to my disability of hearing loss and Tinnitus. I had been employed by my ex employer 22 months. I had gone of work last November due to work related stress but was also waiting on an Audiology referral to come through. My employer was aware of all of my health issues. I had an attendance and wellbeing review (AWR) in May and was told I could discuss appropriate headsets at my next AWR which was scheduled for 18/6. I did contact the RNID and Tinnitus UK so that I could gather as much knowledge as I could prior to this. Before the AWR in June I had also bumped in to a colleague who has a similar hearing issue to me and he had recommended the headset he wears and sent me a link for it which I forwarded to my team leader. Just before the AWR, I then received an invitation for a capability assessment/attendance review to take place on 23/6. I contacted my TL and she said that it might not go ahead. It would depend on the outcome of the AWR with her. I had a fit note with a return to work date of 14/7 with recommendations from my GP. On the 18/6 I attended the AWR and tried to discuss my RTW but it was like the tone had completely changed. I took with me a proposed phased RTW plan to discuss, information from the RNID, Tinnitus UK and also evidence I had been speaking with an Employment Support Advisor via Talking Therapies but it all seemed to fall flat and was met with no interest. I was dumbfounded. I asked my TL to discuss my proposed phased RTW plan emphasising it would need to meet with her approval but she was not interested. She was really quiet. The note taker during the AWR was also a TL I knew (but not well) and he asked me questions which I felt were hostile. The whole experience was awful. I felt completely ganged up on. I did manage to show my white noise sound support and show how it sits behind my ear. The reasonable adjustments I asked for were: to sit somewhere quite on ‘in office days’ and for ad-hoc additional health breaks to adjust/remove my sound support. These were agreed to verbally. Where I raised the question about the link to the headset and the link I’d sent my TL, she said that she had been unable to follow the link and she asked why I had not just bought one. I explained that we were due to discuss headsets at this AWR. there was a cool response, my proposed phased RTW plan was merely photocopied and I was told the Capability/Attendance Review Hearing would still be going ahead. At this point in time I had 2 further medical appointments to still attend. One was my final session of CBT therapy due to happen the day of the hearing (23/6) and the other was with the Audiologist on 20/6 (rescheduled from 30/5 due to the Audiologist being ill). This was a follow up appointment to see how I was getting on with the sound support. Through my employer I had private medical cover. I had spoken with them at the end of May and a report was compiled. The report stated I have a disability and that my employer should allow me to trial a RTW after all my medical appointments were completed.
as I hadn’t like the time of the AWR and the Attendance Hearing was still going to go ahead, I sent a letter to my TL requesting a reasonable adjustment for the 2 requests above. This was never acknowledged. On top of this, when the notes from the AWR meeting were sent to me, they were inaccurate and incomplete. I replied to the email containing the Tale notes with my version of the notes asking for them to be recompiled. This was not done before the hearing. I had joined the Union but too late for them to represent me but they were able to give me basic advice which was if I wasn’t happy with the notes I needed to make this clear but I could attend the hearing to discuss my return to work. Unfortunately I didn’t receive a reply from the Union representative until after the hearing but the morning of the hearing I did send the hearing manager an email to ask her if it could please be rescheduled and why. She declined and because in the invite it had said that a decision on my employment could be made in my absence I felt I had no choice but to attend. My final session of CBT took place and ended an hour before the hearing. I did have a colleague attend and take notes. The hearing was a hideous experience. The hearing manager was very dismissive of my health issues and seemed to have an issue with my proposed phased RTW plan. I emphasised I was not happy with the notes from the AWR and that the RTW was a proposal. From the audiology appointment on the 20/6 the audiologist had put a new program on the device which was a hearing aid function and this was a significant improvement for both my hearing and Tinnitus. I was advised to have a period of ‘habituation’ to get used to this so explained this. In relation to the CBT my practitioner had advised a period of stabilisation following this (as she had also recommended I have some bereavement counselling too). I explained this and I must point out the final reports were not available at this time as still being typed up by the health professionals. I was just completely unheard. The hearing manager had also still been sending additional things into the appendices for this hearing on the 20/6 which was just one working day before the hearing (as a Friday) so I felt everything was rushed. The hearing manager ended the hearing at it was agreed I would speak with my GP to see if I could return to work sooner than 14/7 so I had agreed I would seek their guidance due to the recommendations above from the Audiologist, CBT practitioner and the companies healthcare provider which stated phased RTW at beginning of July after all appointments completed. About and hour after the meeting the hearing manager phoned me and asked if I could RTW on 30/6 and she would put 24/6 through to 27/6 through as annual leave. As I was away from 24/6 because my boyfriend had booked a surprise short break for me as I’d had a rough time and he knew I did not want to take any further time off work after returning, the earliest I could see my GP was on 30/6. I assured her I would seek their guidance on 30/6 and update her as soon as possible. I felt very pressured and told her this. I did this on 1/7 sending a revised fitnote in with a RTW of 7/7 with my GPs recommendations in the comments which included the habituation period and the stabilisation period and details of a phased return to work. I also added that I was open to speaking with my TL to discuss the plan for the following week during the course of that week. She acknowledged receipt, said she was still reviewing my case and that she would be in touch on 3/7 with her decision. I had logged in on my work laptop through the week, reading emails and preparing myself to return. On 3/7 I received her decision which was to dismiss me. She stated I had further delayed my return to work. I was distraught. I feel like I have been punished. I appealed the decision but the outcome remained the same. The hearing manager of the Appeal Hearing was a Customer Service Manager so I feel this wasn’t really appropriate either as no HR / Occupational Health element. I am now going through the Early Conciliation process with ACAS. I would like reinstatement as I do not feel I should have lost my job. My boyfriend (we do not live together) works for the same company (it is where we met) and I just feel completely isolated now as this has made things very awkward. I feel I have lost my career. My colleagues (our colleagues) who became friends now feel awkward. I’m now unemployed, obviously have outgoings and have gone from being in a secure position to the opposite and where I had improved my mental health to return to work, this has deteriorated again due to what has happened. If anyone could please advise me as I am so upset about all of this. TIA.

You said you got SSP. So you were paid by your employer.

You did not need 7 months off work. You chose to take 7 months off because you wanted certain treatment with a huge wait list. You were off with stress, not a disability. They approved your RA.

You did not need to see your GP to get a green light to return to work. You could have gone back in June at any time instead of messing around with more medical appointments and going on holiday.

Recovery from what exactly? Hearing loss is not an illness, you don’t learn to cope better sitting at home!

If you've recovered from tinnitus and hearing loss, please share. After 25 years of it I'd love to know how to recover.

At this stage I’m just wondering what you are going to do when the tribunal is over @mummytippy

Will you accept a no from them if that is the outcome?

There are other posts too, relating to her previous job since the mental health issues started in May of 2020 during Covid. She wouldn't be the only one at that time, I hasten to add. Interesting background to read the posts about her previous employers offering her Voluntary Retirement/ an exit package after long term absences there too.

She has had a lot to deal with, no doubt, but she doesn't seem to want to help herself, as far as I can see from her posts

@MrsBennetsPoorNervesAreBack The companies healthcare said in their report I should be allowed to trial a return to work.

@mummytippy You haven't answered my questions, OP:

• What do you want from this thread? and
• Have you taken professional legal advice prior to contacting ACAS wrt to submitting an ET1?

Did you want to trial a return then go off sick again in the new year?

Not sure why the hearing issue/tinnitus required you to have that much time off other than for appointments. The habituation to a hearing aid does not need you to be off work, in my experience it’s better to be at work to get used to the environment. Adjusting hearing aids takes seconds so it’s odd to need official breaks to adjust them. I imagine your mental health issues has made you hyper focused on these issues as it all seems a bit ott otherwise

And if you largely wfh why the lengthy absence and demand for RA at the office?

Why did you need a green light from GP before returning?
Why didn't you work in between appointments?
Were you unpaid or on SSP?

She'd get another round of SSP after 8 weeks, I think it is, if it links to a previous period of sick pay

I understand why you're upset, but at my employer, part of the civil service they would be looking to dismiss much earlier, likely around 6 months absence if no guarantee of 100% performance on return even with employees of lengthy service with a disability.

For someone new they would be having those discussions after a month.

Your employer has persisted longer than most although it must have been particularly hard for you to be dismissed just before your return. J

More than 6 months off will trigger dismissal in most jobs. I get 3 months max sick leave (paid) that is very generous in the non public sector. Reasonable adjustments are just that, reasonable, 8 months off is unreasonable

@TableTopTree Thank you. This is exactly the point. I have been completely unheard and although my RA was agreed verbally at the AWR on 18/6 I then spoke to the EASS (Equality Advisory Support Service) and they advised me to send a letter in attached to an email which I did. I did this because I felt the tone had changed between the AWR on 21/5 and 18/6. I was dismissed before I could trial a return. I honestly feel they had already made their decision on my employment being terminated at this point. I feel like the capability/attendance hearing still went ahead because of this. Everything was done with the space of a week… AWR, Attendance Hearing, my short break booked by my boyfriend (which I could have well done without). It also felt very inappropriate that the hearing manager phoned me after the hearing where I did not have my colleague or the note taker present. I complained at the appeal hearing about this but the outcome did not change.

OK, but they were presumably advising only on your health needs? It wouldn't be their place to advise on employment issues, so that was a separate decision.

I still don't understand why you think the delay in implementing the RA was a problem when you weren't even in work. They had already agreed to them verbally, but their implementation was overtaken by other considerations arising from your poor attendance?

What employment did you undertake between losing your mum and starting this job - it sounds like you were possibly unemployed for 3 years?
Also, did you receive employer’s sick pay whilst you were off sick, or just statutory sick pay?

OP has posted that she doesn't want to go to ET over this and is currently in the early conciliation phase with ACAS so is presumably hoping they will negotiate her retaining her job (no guarantee of that at all though - she's more likely to receive a small payoff if she's lucky).
My concern is that, despite me asking her twice now, she still hasn't said if she's taken professional legal advice on the strength of her case and her likely chance of winning at ET. This is actually important because although the general rule at ET is that each party covers their own legal costs, the judge can make a costs order against the claimant if their case has no reasonable prospect of success - OP should have taken professional legal advice to assess this or, if she hasn't already, do so before proceeding to ET.

If your tinnitus started in February 2024 why did it take 16 months for you to buy a £30 handset for it?

Everything was done with the space of a week… AWR, Attendance Hearing, my short break booked by my boyfriend (which I could have well done without). It also felt very inappropriate that the hearing manager phoned me after the hearing where I did not have my colleague or the note taker present. I complained at the appeal hearing about this but the outcome did not change.
Why do you keep going on about the holiday with your boyfriend as if it's something that was negatively done to you?!

OP's already answered this more than once - just SSP.

The thing is, OP, they are allowed to sack you for your poor attendance, and you haven't yet presented anything which would suggest that your poor attendance was the consequence of your employer's failure to make reasonable adjustments. Indeed, they had no opportunity to make the adjustments that you had requested because you weren't there!

You seem to think that you should have had an automatic right to trial the adjustments according to your own timescale, but your employer clearly concluded that you had been off for too long already. And that is their prerogative.

From what you've said, the RA that you were requesting weren't even related to the reasons stated on your fit note for your extended period of absence.

"if you involve a tribunal do remember that this could harm your employment prospects still further"

This isn't necessarily true and employees shouldn't be put off pursuing a claim if they have been treated unfairly

Re: Reinstatement - you are extremely unlikely to get reinstatement if you did succeed in bringing a case against your employer OP - "it is rare for an employment tribunal to order reinstatement or re-engagement (such orders are made in less than 1% of cases)"

She only worked from April 24 to November 24 after the tinnitus diagnosis and she clearly didn’t talk to her employer about headsets or RA during that time so that she could claim workplace stress and go off sick for 7 more months. Then she only started discussing RA for her tinnitus in May… but apparently she was very proactive at sorting out her health and what she needed. No way anyone called her proactive.

@MrsBennetsPoorNervesAreBack The reasons for my RA were on my fitnote. The company had the AWR on the 18/6 to discuss my return and headsets. Then when it came to it the tone had changed and their agenda. I still had medical appointments to attend that their own healthcare report had stressed I should and then be allowed to trial a return to work.