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.

Surely the Audiology appointments, adjustments, headsets etc are a red herring here- as far as I can tell they are not what you were signed off with?

You had seven months off with work related stress, and they consider you’ve inappropriately prolonged that by a) not using the private healthcare provided and b) not RTW when you could have done. You were also massively unwise to prolong it like that in your first two years of employment.

I think you’ve tried to extend this way beyond what’s reasonable OR, if after seven months, you’re still too stressed by the idea of your job to return, it surely isn’t a job you can realistically continue on in.

I hope you can find something that is more suitable for you going forwards but I think your employer has done more than many others would tbh.

@mummytippy sorry but I almost find this hard to believe. No wonder there is so much anger at the welfare system and disability payments when someone in your situation who barely stepped your foot in the door of your employer's, is now wanting to take the company for a tribunal. You should be grateful they kept you on as long as they did!

This poster has summed it up for me @mummytippy

I'm sorry you are where you are, but I agree that being off with work related stress suggests that this was not the job for you and hopefully you can find something which you will be happier, less stressed and more suitable for you

Sorry but I do find this quite ridiculous. Were you off for all those months with work-related stress or audiology issues?

Either way, they have followed the process to the letter. I was off for 3 months with acute mental health concerns (hospital) and returned to work as soon as was able to on a phased return. I probably returned too early, but it showed a willingness to return.

7 months is an awfully long time. Apart from Cbt what other work were you doing?

Have they extended your probation period after the first sickness absence?
Even without extended probation and being over 2 years employed, the 2nd sickness period took you over the 6 months mark. That's a dismissal at my workplace unless there is a very, very good reason- I'm NHS.
I agree, you could have done more to get yourself back to work.

Sometimes it's about priorities.

Sorry OP but there is no case here - you simply weren’t available for work enough. They probably got rid of you as after 2 years it is much header. I have a chronic illness which is classed as a Dyson I understand that it must seem unfair but they couldn’t let it go on indefinitely. Going on a short break is taking the piss to - you should have prioritised work. Maybe something not being in the phone all day would be better for you?

Looking at some of the past here, this isn't the first job that the op has had many months off sick for. Her previous job she was furloughed and then went off sick immediately after for several months and even up being offered voluntary redundancy. I don't know what happened there.

Wow, a lot of responses here from posters with no understanding of employment law!

The point is, you would likely have had far less absence, if reasonable adjustmenrts (RA) been made for you, in line with the employers responsibilities towards you under EqA.

If you have identified the policy, criterion or practice that is causing you the issue, shown how it disadvantages you, and suggest specific RAs, then the burden of proof shifts to your employer to prove the RA you requested isn't reasonable (s136 EqA). It seems this didn't happen?

Was your absence due to stress directly linked to the way work had treated you when you made your initial request for RA?

If so, you likely have a case. Honestly though, would you have been able to work normally, if RA had been made sooner?

The holiday is a red herring, no tribunal would expect you to cancel a pre-booked holiday to attend a doctor's apppointment. If you are suffering stress, the holiday is likely to have been of benefit to your mental health anyway, that's an easy one to get past.

Some people have a really weird sense of entitlement in relation to these things. I once had a new member of staff threatening to take me to employment tribunal because I wouldn't make the "reasonable adjustments" that she required in her role. She explained that she suffered with social anxiety which made it impossible for her to interact with people who she didn't know. Given that she had applied for an outreach role that was primarily focused on making connections with people who she had never met before, and given that she hadn't given any indications at interview that she wouldn't be able to do this kind of work, I had to politely explain that there would be no job left if I implemented the "adjustments" that she was requesting. She essentially wanted me to create a whole other "back office" job that I had no need for, and for me to employ someone else to do the job that she had been recruited for.

Needless to say, she didn't pursue the employment tribunal. I presume that someone must have advised her that she didn't have a leg to stand on.

Wow. I don’t think you could possibly go
for reinstatement - you have absolutely taken the piss to the moon and back.

My DD has hearing loss and tinnitus, as do I and many other family members (genetic link), and we use hearing aids and make other reasonable adjustments like closed captions on teams meetings, sit in the middle of in person meetings etc. I think I miss maybe half a day once a year for audiology check ups. I absolutely cannot fathom the vast amounts of time you have had off and that you think you should keep your job when you are obviously not willing to make even the most cursory effort to meet your employer half way.

So, she’s just figured out a way to get an income without having to work or deal with UC forcing her to look for work.

Get a job, go off sick, get sick pay.

@Alittlefeedbackwouldbenice In my previous job I was furloughed at the start of Covid March 2020. My employer would not allow anyone to WFH. My Father then passed away in July 2020, I then began to care for my Mum and then she passed away in December 2021. This is my main job since that time.

I just couldn’t agree with 39/6 without seeing my GP and I could not physically attend an appointment until that date. (assuming that's a typo for 30/6)

Because you were on holiday with your boyfriend. You'd been off 8 months in that stint already - it's mad to be taking a stand about how you can't go back to work without seeing your GP but the reason you can't see the GP is a holiday. There are measures to protect people with disabilities from work discrimination, but you must see you've taken the pee here and pushed them over the edge. Ultimately you chose to prioritise your boyfriend and the holiday instead of seeing the GP (if that really was essential before returning) and going to work. Plus what others have said about choosing NHS over the private care provided which would also have sped things up rather than spun things out. You must have known the 2 year period was coming up so it would have been wise not to quibble over extra weeks at this point or they'd be justified in pulling the rug. Sounds like a bad fit for you anyway so better to find something more suitable.

It’s hard because you are changing the dates somewhat but are you saying you worked there for 22 months, 10 months of which you were off sick?

You were off for mental health problems? You also have a hearing related disability and because of that you think you have a case against dismissal? However that wasn’t the prime reason for your absence.

When they discussed you coming back you made them wait as you were going away on holiday?

If I’ve understood correctly I don’t see that you have any sort of case.

No because I didn’t post anything and this was despite being told I was entitled to a holiday.

It is not fair that you are unwell and have really struggled with the stress of this job and with your hearing.

However, it is also unfair for a company to have to pay - long term- a wage to someone who is not working.

This job is not the one for you OP:
-It was too stressful for you (and really, what has changed for the better for you during the long period you have been off?)

-The relationships you had at work are now broken down to the extent that you feel they are 'ganging up' on you. This could only add to your stress everyday.

You are not the employee for them.
-You can't do the work but you need to be paid. They have been replacing you and paying you!
-When they were paying you and you were not working, you put a holiday with your boyfriend before your work duties. You don't seem to be doing your bit!

Actually there is employment appeal tribunal case law that would have supported your employee in this situatiuon - giving somebody a trial period in a new role has been held to be a valiud RA, when the original role proved to be unsuitable.

Suggest you have a read of Rentokil Initial UK Ltd v Miller before you employ anybody else!

ff I was you I'd work through with a employment lawyer. It is not easy to unpick what has happened from your post. You need to work through carefully with an expert to see if there is any discrimination.

But did you get yourself signed off sick from that job for months as well?

I'm not sure that it's clear as to whether the OP would have had less time off if RA had been implemented in a timely manner. We don't really know whether the work-related stress was linked to the disability or not, do we?

...which is why I asked the question, it seems quite likely on the facts OP has stated so far

But the role has to exist/be necessary. Not a small business creating a new role, which they do not need and have no budget for.

Reasonable adjustment. Reasonable.

In an organisation with lots of roles and space to move someone? Yup. Creating and finding the budget for a new role they do not need, has no value for the business and then also having to pay someone to do the original job is not reasonable.

I have tinnitus and while I know it can be hard to deal with at times, I cannot feasibly imagine not working for months on end because of it. Were you signed off for related stress rather than audiology issues?

i'm not surprised you were dismissed before the 2 years.. you've took the piss majorly.

I was going to say ACAS, but really.. as someone who is also disabled, when you've had 9 months of a 2 year employment off sick, what did you expect? They were NEVER going to let you go over the 2 year point.

I think ‘entitled’ is the entire issue here