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.

Yes, but only if the employer can evidence that

1. It has made RAs and
2. The RAs didn't work.

It can't dismiss on the grounds of capabiluty until it has fully exhausted all other options, and yes, this is a day 1 right for all employees.

They agreed to what she asked for her reasonable adjustments. Someone else in the company has the headset she needed. It’s allowed. They weren’t going to say no to that.

They started ignoring her at the point though as they were obviously planning to get rid of her. But the agreed to all the RA request before that.

Of course it would be reasonable to give someone a trial period in an alternative role if such a role exists. But if there is no such role, and no need for such a role, then the law does not require employers to invent spurious vacancies so that someone can engage in busy work that adds no value at all for the business.

Reasonable adjustments do actually have to be reasonable. It is not reasonable to expect employers to redeploy disabled staff in pointless roles that aren't required.

In the case you cited, the employee had applied for a vacant position within the organisation because they were no longer able to carry out their substantive role. Their application was unsuccessful and the tribunal found that he should have been given a trial period in that vacant position. They did not find that the business should have invented a pointless role for him, so the two situations are not comparable.

Suggest you check that your points are relevant before making incorrect assumptions.

Sorry if I’m being thick but I don’t understand why you were off work. You said you were waiting for them to agree to extra breaks and a new headset but I would’ve thought these were things you could put in place yourself (buying headset and going to toilet more often for a break). You also mention CBT but couldn’t you have gone back to work and asked for half a day annual leave a week to complete this?

It is true I don’t know what it’s like to lose my hearing, only have mild tinnitus, I am just struggling to understand what would have changed during the six months off that meant going back to work in July would’ve been different to going back earlier

...but they failed to implement the RAs. That is the point.

In Rentokil v Miller though wasn’t there another role to trial him in? In this case there is no alternative job to offer a trial period, the poster says they don’t have a back office position to fill.

ETA sorry I got side tracked! Not relevant to the OP.

You're focusing on the wrong thing here.

You delayed your return by insisting on not using your work provided private health care to expedite everything.

By insisting on using the NHS you added months to your potential return.

You also went on holiday when you could have had a doctor's appointment. That would piss off any employer.

Yes, you need to have the budget for RA.

Creating a whole new role, which has no business need and nothing to actually do, then also hiring another employee to do the original job is not reasonable. You’d never win a tribunal if that’s what you were asking for.

Suggest you read my later posts before posting yourself

How could they implement them when she didn’t return to work?

1. Why didn't you just buy the headset and claim the expense back? Was it prohibitively expensive?
2. Why didn't you use the private healthcare?

Not sure what else you could’ve expected, OP, you’ve barely been there and are quite obviously not suitable for this job.

My husband has severe tinnitus and hear loss, caused by a tumour. I can’t say he’s ever taken time off because of it. You need to find a different job if it affects your ability to do this one.

Jeez-6 months off sick for 2 years employment. I’m missing a trick here-I wear hearing aids and have bad tinnitus but have just get on with it. How can companies run their business like this?

She was off for way more than 6 months.

She only actually attended work for a few months.

@LIZS I did buy a headset myself the day after the AWR- the one my colleague had recommended. I put the access to work link in my reasonable adjustment but as I’ve said this RA was not acknowledged. My reason for absence was initially work related stress but I was also worrying about my hearing and the Tinnitus. Yes I could have and was fully prepared to return on 7/7. My time off between 25/11/24 to 3/7/25 was paid at SSP rate. The company actually made a mistake on my wages and paid me in full in December and so this was repaid back too over the time I was off.

@mummytippy

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.

If their motivation for firing you was so that they got rid of you before the 2 year deadline and the kicking in of your "rights" then they've been daft because protected characteristics (i.e. disability in your case) don't have a "qualifying time" they're applicable from day one.

@SpigTheFish The health issue of hearing loss and Tinnitus is new (started February 2024) 6 months after my employment began but my anxiety and stress I’ve had since 2020.

A few points:

• The short break should have been cancelled. You can't say 'I would return to work but I have this holiday booked....'
• Fit Notes make it really clear that you can return earlier than the date stated by the GP if you are well enough. They also make it clear that you don't need to consult your GP before making that decision.
• The fact that you said you would have returned to work had it not been for the short break is also tricky.

How much was the headset that you had suggested? Why didn't you use the private health cover?

I'm really sorry but you're absence rate was 45%. That's completely unsustainable and you should have seen it coming.

In making their decision the company would have been looking forwards as well as back. If you coud guarantee that your next 22 months in post you would have no, or minimal, absences, then they may not have taken this action. But if they thought there was a real possibility they were looking at suppporting the same levels of absence in the next 22 months (and that is not unreasonable) then they are justified in concluding that you are not a good fit with the company.

Absolutely reasonable adjustments should be made for those with a disability or health conditions but the key word is “reasonable”, absolutely no job on this planet can be adjusted to fit every single need or accommodation that may arise.

If someone got a job as an estate agent for example and then declared they’d been diagnosed with agoraphobia and couldn’t leave the house, would you expect their employer to just let them sell houses over the phone instead. Would you buy a house over the phone?

@mummytippy
Im sorry to read you're having a difficult time, & I apologise I can't offer any useful advice.
I am , however, very interested to learn about a device that helps with tinnitus.
If you have time/energy I'd appreciate it. 🙏

I've read your other posts. My response still stands.

Your argument appears to be that smaller employers should not employ anyone at all unless they can afford to pay for extra staff who are are unable to do the jobs that they have been employed to do to sit around and do pointless busy work instead, because you perceive that to be a reasonable adjustment.

I do not believe that any tribunal would consider such an adjustment to be reasonable. But please feel free to cite any relevant cases if they exist.

You lost the job
you could have resolved things quicker but you didn’t

move on
they don’t want to employ you and I don’t blame them

So if your absence was not related to disability then you weren’t dismissed for reasons linked to disability. Your post heading is misleading no?

Whether “stress” and “mental health” is considered a disability and therefore a protected characteristic is another matter but I’m not sure going down the route of tribunal based on your hearing impairment would get you the win you are looking for. To also purchase the headset right at the end of your absence perhaps indicates you are clutching at straws.

however did you cope in the short time that you were in work?