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.

@Bobiverse I can assure you that I did not delay my return to work by choosing to follow the path of the NHS. I used the services of Mind who I’d used before in 2020 and found them brilliant so this is why. In relation to my hearing loss and Tinnitus the only part of that the private healthcare could help with (speed up) was the MRI scan I needed to have done on my head. I opted for this but then the MRI appointment came through for 2 days later with the NHS so I remained on the path with the NHS. I felt my choice was respected.

You did delay your return.

They don’t want to employ you. And the job does not suit you anyway. You won’t win at tribunal. Move on.

This case law wouldn't have affected @MrsBennetsPoorNervesAreBack 's situation at all.
Firstly, in Rentokil Initial UK Ltd v Miller, Mr Miller had been able to perform his job as a pest control technician for some years before his progressive multiple sclerosis made it impossible. By contrast, "MrsBennets" new employee was never able to perform the role for which she had been recently recruited.
Secondly, when Mr Miller became incapable of performing his original role, he applied for a more junior role which he didn't secure due to failing written tests and the interview. By contrast, "MrsBennets" new employee was not applying for an alternative existing role - she was expecting "MrsBennets" to create a whole new role for her that the company didn't have or need.
Thirdly, the ET upheld Mr Miller's claim because his employer failed to give him a trial period in the alternative role. "MrsBennets" company does not have an alternative role in which to trial their new employee and cannot be compelled to create one.
This case law would only apply to "MrsBennets" situation if her new employee had applied for an alternative existing role within the company and they'd refused to trial her in it.

@SupremeArbiter I was off 10 months out of almost 23 months employed. I did not miss a meeting due to a holiday. I could not see my GP any sooner than the hearing manager wanted as I was away on a short break the day after the hearing for 4 days.

Exactly. It's astonishing that the pp won't acknowledge this.

What would happen if the replacement employee also had a disability and needed to be redeployed to a non-job as a "reasonable" adjustment? The business would then have to employ a third person to do the actual work. Basically, nobody would ever be able to employ anyone!

Exactly!

^This

They let her go because of the absences. They agreed and have previously implemented RAs, this specific situation has nothing to do with whether or not the company will implement RAs and everything to do with the OPs absenteeism.

There is absolutely nothing reasonable about the OPs approach to this job, her posts and more particularly her completely unusual and unreasonable way of looking at this situation point to significant mental health issues that basically make it impossible for the OP to work in this job.

You waited 38 weeks for an appointment to see someone in Audiology??

I’ve just phoned up my local department and got an appointment for 2 weeks time!
I use hearing aids and I have tinnitus, in all my years of having hearing loss I’ve not once had a day of work nor do I class it as a disability!!

You won't win a tribunal OP.
Find another job, and actually go to it.

I know. I find it astonishing how people can believe this stuff.
I’m a small business owner and I was actually open mouthed in shock that @TableTopTree actually believes that my business cannot afford to operate just because I cannot afford to create a second unnecessary role for anyone working for me, while then hiring someone to replace them. It’s unbelievable stupid. But it does explain some of the ridiculous interviewees.

@FeedingPidgeons Please can you tell me why a tribunal would throw this out when the business failed to make a reasonable adjustment and ignored the advice of healthcare professionals in view of me having disabilities? And their own healthcare report.

@AphroditesSeashell No, Out of 22 months employment I was absent for 10 months.

The workplace version of the old lady who swallowed a fly 🤣

Do you understand why after 10 months off, the employer was getting a little bit frustrated with the situation?

They are, let’s not forget, trying to run a business.

😂I miss the "laugh" button!

They agreed to the RA. You didn’t return for them to implement them.

The lack of paperwork doesn’t mean anything. They’d agreed to another employee having the headset, they verbally agreed to the other extras you needed. You just didn’t return to work for them to actually implement those changes.

They also didn’t fire you because of your hearing issues or the RA you requested. They fired you for your time off work, due to stress after they had already made the RA you asked for in regards to panic attacks. They fired you for delaying your return and for the sheer volume of absence.

Having suffered with mental health problems for over 40 years, I'd have jumped at the opportunity to go private and be seen pretty much immediately.

But you, OP, had used MIND previously and decided to go on a 38 week waiting list for help. In itself that's perplexing.

In your own time, you can do as you like. In your employer's time it's wise to go the route that will help improve your health and get you back to work much more quickly.

Why do you not seem to think this is a big deal?

Ok so this, in a nutshell, is why you were let go. You simply were not there half the time.

You could speak to a solicitor about pursuing a disability claim, and that will turn on the facts available as to whether they’ve made reasonable accommodations.

But you have very few employment rights before 2 years service. Plus, sounds like they had grounds for dismissal.

I can assure you that I did not delay my return to work by choosing to follow the path of the NHS. I used the services of Mind who I’d used before in 2020 and found them brilliant so this is why.

They weren't that brilliant if you're still suffering with the same issues 5 years on. From your posts on here, I think this is a bigger issue than the disability, which is relatively recent and wasn't the original reason for the prolonged absence. You can use it to argue the toss and push for a tribunal if you really want to go there, but the reality seems to be that you weren't coping with this role or the previous one and need to find something more compatible with your capability, which isn't really about headsets, but whatever else is going on for you anxiety/stress-wise. And I'm pretty sure the latter won't be helped by choosing to battle this employer.

These kind of posts are what give disabled people a really hard time in the workplace and put employers off hiring them.

I am doubtful you’d win at tribunal and I think your energies would be better spent sorting your health and identifying a job better suited to you and your needs.

Op
you have zero chance of succeeding with any sort of a claim here. It's amazing they kept an new employee on as long as they did.
Id focus on trying to get some sort of a reference.