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.

Clearly from what you have written you have significant mental health issues in addition to some minor physical health issues but you are framing these issues with work around your physical health more than mental health.

Have you had your mental health issues diagnosed?

I highly recommend you consider that first so you can look at other sources of income related to those issues rather than employment. It does not sound like you are well enough to work at present.

OP, when I looked at your previous threads (to see the one about your hearing loss that you referred to in your first post) I noticed that you also had a lengthy period of time off work with mental health problems in your previous job, and they eventually made you redundant which you saw as you being forced out. That wasn’t long before you started the job you’re referring to here.

I think you need to understand that there is a limit to your employability if you can’t manage to do the jobs you apply for, and you need to seek further treatment for your mental health issues (have you been referred to a psychiatrist? You could ask your GP about that?) or adjust your expectations of what roles you’re suitable for. Some JobCentres can signpost / refer you on to services who can help you do that.

I don’t lack sympathy for you - you obviously struggle with your mental health and your previous posts suggest you have a long history of disputes with your ex, your kids’ schools etc which must have been stressful over the years. But you do need to be realistic and take some steps to help yourself as well.

@Bobiverse I started with Tinnitus and hearing loss in February 2024 when I was already employed by them. It is a recognised disability. Do you actually know what it is like to lose your hearing and have a constant whistling sound in your ear that does not go away? I did not make ‘a big deal out of it as you put it. I was coming to terms with what was happening, waiting for healthcare via the NHS which took 38 weeks plus to be seen. I am a strong person and have battled with my mental health in respect of lots of issues. All I wanted was some actual support from my employer in the form of them coming to me when I was due to return.

Fair point - but there is an argument to say that if you don't have the budget to employ somebody, and then to make necessary RAs, then you don't have the budget for an employee at all.

There is a lot of ignorance around this - as evidenced on this thread. Small employers seem to be the worst offenders too.

Being disabled myself i wouldn't expect anyone to keep a job open for me if i was absent nearly 50% of the time.

Can you say why you opted for the NHS 38-week wait over the private option? Or not, if you don't want to get into it, but it does seem like a strange decision.

I think you need to contact ACAS for support and advice. It maybe that you can appeal their decision to sack you, which doesn't sound legal......
It sounds like the company have tried to 'ditch' you before 2 years of employment have been completed to remove your greater protections that come after 2 years of service.
However the fact that you have a disability and have done everything you can to maintain a relationship with work during sick leave and this is just being ignored is appalling.
It sounds like the company haven't bothered to make reasonable adjustments for a disability and are using capabilities as an excuse to get rid.
Good luck

@Bobiverse You have misread my post/comment. I had a reasonable adjustment in place for panic attacks. Not my hearing issue.

Those arguments are well made in terms of some small employers but not in the context of this thread. The OP is definitely expecting way too much from her employer in this specific circumstance. This is well beyond the level of any form of RA. I don’t think this case would stand up to any degree worth considering in a tribunal.

Honestly OP, this is not a great place to ask this question - as I said there is a lot of ignorance around RA and the law is generally very supportive of people in your situation.

Is there a reason you didn't go through your employer's private health scheme though? They should 100% have made 'reasonable enquiries' as to the extent of your disability well before 38 weeks.

Have a read of Cox v Essex County Fire And Rescue Service - its quite informative on this point.

To be honest, being off that long isn't workable for your employer. While I have some sympathy for being poorly, I don't think you should've taken the job if it affects you so badly. I also understand your employer, they need someone to work and they employed you in good faith.

Why didn’t you make use of the private health care and get help sooner?

Why did you need to see your GP before returning to work. You were ready to return. You didn’t need to see your GP. You can work and continue to see your GP for support.

Refusing to go private and wait for the NHS was a delay tactic. Refusing to return until yet another GP appointment was a delay tactic.

The bottom line is that if you have health conditions that are long term and not necessarily going to go away then the onus is you to find a job that is suitable for your needs, be it something less stressful, part time, work from home, zero hours etc not on an employer to continue to keep someone on their payroll who is unable to fulfill their duties because the entire job is just fundamentally unsuitable. If you are unable to find any job that you can do around your conditions then you need to start exploring what benefits are available to you instead (UC, PIP etc).

I have no useful advice but I hope you take them to the cleaners. It’s obvious they saw you as hard work and wanted to push for you to be gone.

DP was pushed out of his job even though they were aware of his two disabilities (that he disclosed in the interview so it’s not like he sprung it on them) and to this day I’m resentful and regret that we didn’t pursue the matter further.

Tinnitus seems horrendous, it’s something I’m very afraid of ever developing because I have issues with vertigo as it is. Good luck OP.

Playing the system. Doesn't want to work. There's far too much of it these days - people who put much more effort into avoiding work than actually doing it.

Also, creating far too much drama and extra work for everyone else, having to accommodate & jump through all the bureaucratic hoops for her shenanigans. No one's got the time for that.

What are you basing this on? Adjustments to the physical environment (a quiet space) and provision of an auxilliary aid (a new headset) are well within the range of reasonable according to ET and EAT case law. If they are not, the employer is required to set out why, which I can't see it has done.

@Didshejustsaythatoutloud 13 months. I received no SSP during my 2nd absence which was 6 months long.

This. You can be dismissed on capability grounds regardless of disability. The amount of sickness you had was off the scale. I’m surprised that you seem surprised that you were dismissed.

Companies do have to follow certain rules regarding warnings, etc I think but not sure of the details. Some companies might not bother and feel getting rid of you quickly is worth the risk of a tribunal. They save paying your wages and and payout normally isn’t very much.

No!! This really isn't the case!

People (mainly Trades Unions) have fought hard for the rights of disabled people in the workplace.

It's totally reasonable for OP to assert these rights and to have them respected.

These rights also include the right to paid holiday, maternity/paternity leave etc. Shall we all just give up those rights too, as they may be a bit inconvenient for the employer?

My reasonable adjustments were agreed to verbally but the actual formal letter was not acknowledged. I did already have a reasonable adjustment in place for panic attacks which I’d submitted in March 2024 and this was actioned. Yes there are quiet areas to work in the office. There are meeting rooms.

Your reasonable adjustments were agreed. You don’t need the paperwork. Plenty of managers implement them and paperwork comes later. You had it agreed. Still didn’t go back to work.

I’ll ask again since you have continued to ignore everyone asking it.
Why didn’t you make use of the private health care and get help sooner?
Why did you need to see your GP before returning to work. You were ready to return. You didn’t need to see your GP. You can work and continue to see your GP for support.
Refusing to go private and wait for the NHS was a delay tactic. Refusing to return until yet another GP appointment was a delay tactic.

I'm also confused as to why you didn't go through the private health scheme?

Blooming heck.

and there's me feeling bad for taking the week off when I had flu last year 😅

I think you've done very well to have lasted so long.

don't really know what else you would expect?

You could talk to a union rep or an employment lawyer, but I would be very surprised if you get anywhere. You need to find a new job that you can actually do.

If your absence wasn’t connected to your disability then they don’t have to adjust for that and it will go on your absence record and can and will be used in dismissal processes.

I have a disability and have multiple adjustments as supported by OH and consultant. Still had to kick up a stink and get union in to get them in place.

however, I’ve also had a few absences not related to that disability (x2 covid a chest infection and a couple bouts of d&v - think patient facing healthcare and you get the gist)

they absolutely do go on my absence record as they should and I wouldn’t dream of asking my employers to ignore them because of my unrelated disability

(For fair comparison in my 36 mths I’ve had a total of 15 days off - I work p/t so the d&v 48hr rule usually knocks out a week, and is compulsory absence in NHS as was my first bout of Covid)

however…..

…. If… and I say if…. Your stress is proven to be linked to the hearing loss and tinnitus … then you may have an argument that by not allowing you to return and use the new headset may be a failure to make reasonable adjustments to see if your attendance /stress improved.

The onus is on the employer to proactively make adjustments as well - particularly when reasonably expected to know or assume the employee has a disability. The prolonged absence should have prompted them to consider if it was disability related and If they have not bothered to do that then there is also failure at that point.

finally if the OP has hearing loss then adjustments should also have been made to meetings she’s had to ensure all information given and received was fully and accurately communicated and understood by both parties as people with hearing loss can struggle to communicate effectively. and perhaps from the OPs post the person leading the meetings wasn’t really taking the OPs disability into consideration by ensuring effective communication

I think you absolutely right to have ACAS involvement but I would expect you to have a very clear account and timeline and well documented evidence of all the issues.

A union rep would be helpful if you have one.

in terms of tribunal - the judge may uphold some elements of a complaint for unfair dismissal and disability discrimination depending on facts but it’s not clear from your account - but probably not all so it may be at a deadlock.

Remember that if a tribunal finds a claim to be malicious or that your claim or conduct is unreasonable they May order you to pay costs so follow the ACAS advice carefully and be honest with them.

Finally, as a fellow hearing loss sufferer with hearing aids, I’m not sure I could cope with a phone job. I struggle enough in a semi patient facing environment and avoid phones, actively preferring teams to communicate. You may wish to consider if overall this was the best environment for you.

And were you not paid at all during your last 6 months of sickness? You say you didn't get SSP.