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.

I might be confused, but I thought the 38 week wait was for mental health.

I think they’re under the misapprehension they can just be on sick leave, forever, and if the employee wants to end that situation they can sue them.

@AphroditesSeashell I had no choice but to delay the appointment with my GP as it was out of my control unless I was prepared to cancel the break my boyfriend had booked. It was a break abroad and the flight was 09:05 on 24/6 (day after the hearing) and returning 27/6 (at night). This appointment was to discuss returning to work earlier as I did have a fit note for 14/7 and the appointment was to discuss returning on 7/7 which matched the date of the company’s healthcare providers recommendation.

@mummytippy I'm not sure what you want from this thread OP - you say it's "advice", but advice about what? You've been following the usual process for this situation. You've had a disciplinary meeting, due to your extended absence, which has resulted in your dismissal on the grounds of your capability to do the job. You've appealed this decision and it's been upheld (by the way, a more senior manager hearing the appeal is perfectly acceptable and in line with ACAS best practice). You have informed ACAS of your intention to make a claim at Employment Tribunal (presumably on the basis of disability discrimination?) and are now in the early conciliation phase (which typically lasts six weeks or can be ended sooner by either party if there is no intention to engage).
It's entirely up to you whether or not you proceed to ET, but you should take legal advice (if you haven't already) on your likely chances of success before you decide.

You were fit enough to fly but not work. Surely you can see how this looks?

I’m also curious about how the CBT plays into all of this although I’m not wanting to know any detail via this forum. As a former employer myself I get the feeling that you are chasing employment that is not suitable for you in any case. Your absence from work means they can’t officially employ anyone to replace you and this would have a detrimental effect on other team members. An employer has to look at the whole picture and it sounds as though they are at the end of their tether.

I can't make sense of why you had 7 months off work. Why have you been off so long.

Well then it wasn’t out of your control was it? You could have cancelled the holiday

I don’t understand why you didn’t just go back to work on 30/6. It sounds like this was the final straw for your manager.

You didn’t need an appointment for that. Sick notes are quite clear; you can retune earlier if you are well and do not need to see your GP for permission.

You could have started back any time. Instead, you delayed and pretended to need to see your GP. You didn’t. You can go back to work but continue to see your GP for support as much as you want… whilst working.

for me, because you had been employed for less than 24 months, you were at risk whatever medical issues you have. It’s a hard corporate world. Good luck

@MrsBennetsPoorNervesAreBack Did she have a disability?

Yeah, they seem to have been pretty understanding about the OP and her health until quite late in the day.

Far more understanding than a lot of employers!

Then she just took the piss and they decided enough was enough.

So you could have seen the GP earlier but you were on holiday? Does your employer know this?
7 months off in one go is a huge amount especially following another extended period the year before, and you'd not been there long. At what point in this sickness period did you have the OT assessment and recommendations made for reasonable adjustments?

Read an article this weekend about how making employees so difficult to fire is actually slowing the economy. Reading this post you can see why!

I had no choice but to delay the appointment with my GP as it was out of my control unless I was prepared to cancel the break my boyfriend had booked.

OP you seem determined to consider yourself a victim of circumstance. You need to accept that you played a part in this too. You could have cancelled the trip, but you chose to piss off your employer rather than your boyfriend. You could have used your employer's health care rather than insisting on using Mind. Own it.

This!

i think my boss was really pissed off at having to make my adjustments for this reason. I’d like to think I’ve proved her wrong by being fit and well enough to do a good job BECAUSE I’ve been supported to stay in work and remain healthy and fit to do that

Why didn’t you cancel the short break?

I have disabilities. I have RA in place - I’m in a team that works in a building with no lift, but my office is in a different building which has a lift.

I can wfh more days per week than is standard.

You were off as much as you were at work. You should have prioritised RTW when they asked you to and not gone off on holiday.

I worked for a Local Authority years ago and it took ages to resolve capability issues like this. I had one employee who was off for four years.

@Largestlegocollectionever If you have read my post fully you see that I would like to be reinstated and not sue or go to a tribunal. I have a disability and am trying to find out if anyone has been through similar. I worked for a multi national company who have supported other colleagues on other teams. Different TLs and managers have different rules. Allsorts of office politics have been at play here - why be put forward for GIP insurance which would mean they were happy for me return post November this year. Non of it makes sense.

Was this a public sector job by any chance as doubt the private sector would have bent over backwards for you?

Sorry but you pushed your luck too far. Surprised they accommodated you as much as what they did. Can't go to work due to noise but can sit on a plane for hours would be the final straw for me if I employed you.

Guessing you now want to claim compensation for unfair dismissal? Good luck with that....

Unfortunately I agree. Sorry OP, you should just take this as a lesson and find a more suitable job.

My sympathies are with the employer, and I have hearing loss, and didn’t take time off waiting for my audiology appointment.

Yes. She had a long term mental health condition which impacted significantly on her day to day life, so I think she would have certainly met the criteria for a disability if the case had ever gone to tribunal.

And I should emphasise that we would have happily made reasonable adjustments for her, as we do for the many other disabled staff that we employ. However, it is our expectation that, with those reasonable adjustments in place, people do actually need to be able to do the job. And in this case, the employee simply wasn't able to do the work.

Sorry OP but you're not going to get the answer you want from this thread and with good reason. That's an utterly ridiculous amount of time off in a short span of employment, I think you really need to question if you're fit to work and if not move forward appropriately. It sounds like you haven't attended work reliably in 5-6 years, and potentially your mental health has had a large part to play in this?

IANAL but I don't think there's a case for disability discrimination here due to the length of employment.

The holiday was a questionable choice when it's clear your job was on the line well before that point, you also didn't need a GP to sign you off. That's your choice and it says as much on the fit note.