Medical Capability Dismissal

[eforegg]

I work or should say worked for a large financial organisation for just over 10 years and have recently been dismissed on the Medical Capability Grounds.

I started with the employer in 1997 adn work within a call centre dealing with all manner of pension queries and complaints.

Last year after my father died I went off sick 20th April 2006. I was off sick for 4 weeks with stress and a further 2 weeks with sciatica (which I recently learned can be brought on by stress.) Went back to work at the end of May 2006.

At the end of July 2006, I was sent home from work as had broken down and just couldn't continue. I got a doctors appointment and he signed me off work with depression. I kept handing in sick notes and communicating with my employer, seeing occupational health. Anyway at the end of June 2007 I went back to work on a phased return to the same role. 4 weeks later I had to go home as I couldn't cope. Again went to doctor and got a sick line.

I had an informal chat with my manager and explained I dont think I'm capable of working in the same role again, at least in the short to medium term. I felt the volatility and stress of such a role was a hinderance to my recovery and my abiltiy to work. I stated this again in a formal meeting at the start of November and seen occupational health again on 10th November.

I had been getting 4 week lines but my last line (mid November) was for 8 weeks obviously to see me past the Christmas period and the added stresses of that time.

I was invited into a formal meeting and had a work colleague as support with me. Where they spoke about my absence, etc and how I was. I couldn't give a definite return to work date, I stated I felt I was improving and could certainly see me returning to work just couldn't be specific with a date. They offered dates or timescales, i.e. never said what like end of December or end of January, etc.

They adjourned the meeting and came back with a decision, they would dismiss me with immediiate effect on the grounds of medical incapacity, with 10 weeks pay in lieu of notice. My colleague asked did you consider any alternative roles the answer no. Did you consider any reasonable adjustments to his current role. No, in their opinion as in there eyes (based on an occupational health report) they think I am unfit for work, I'm unfit for any roles. And as I'm unfit for any work they've never looked at any other roles I may be fit for.

I realise I've been off for a long time however there has never been any issue with me in the proceeding years and have never had less than a good rating in my annual reviews so it wasn't as if I was someone constantly trying to scam them. I thought they may ahve said look we know you dont feel capable in your current role but we have a role in this area which if your were back by X date you could try. However if you cant be back by X date we would have to let you go, etc.

Anyway, I've appealed the decision as is my right and that will be heard soon however I have little faith that much will come of that.

Incidently not that its that relevant but the day after I was dismissed there was an announcement the company had outsourced fo their entire customer service operations for £700million.

Can any give any advise whether they feel I should go any further with this. I feel horrible that they can just discard me like that but maybe thats their right and I just have to accept it.

As a footnote I work for an employer who dont recognise the union in my area and dont allow them access to the campus as they have an employee forum to deal with issues where we are (in scotland) although down south Amicus is the recognised union.

Thanks in advance

[wino]

Hi eforegg, You're going through a tough time but you will come through it I'm sure. I am not an expert on company law. I know I would of handled the situation differently. Are you a member of a union? You mention Amicus. If you are I would contact them for advice. Even though the company doesn't recognise them, they will support you as a member. Good luck

[eforegg]

Hi, thanks for replying.

Unfortunately I wasn't a member of the union.

Part of me just wants to walk away but I know that in retrospect I'll just feel so disposable and I I'm not the first person thats felt that way with them.

As a bit further info in August when I met occupational health they sent a letter to my manager and myself saying she felt my circumstances would be covered under the Disability Discrimination Act how that is and what cover thats given me, if any, I'm trying to read up on, but legal speak isn't my forte.

My appeal is tomorrow, depending on outcome I'll speak to CAB in the New Year.

If there's nothing I can do and the dismissal is "fair" in the eyes of the law then I guess I just have to put it behind me and try and move on.

[wino]

Contact ACAS. They may be able to help.
www.acas.org.uk/

[advisee]

You will certainly have grounds for unfair dismissal. A solicitor would be best placed to advise you however. Ten weeks pay is nothing - for your length of service, you want a good five figure settlement.

If you look up Disability Discrimination Act and Reasonable Adjustments, you can acquire some ammunition.

However, try the appeal first, emphasise your good service, and see whether common sense prevails.

Does your username indicate the bank involved? Evil treatment if so.

[eforegg]

Well the appeal was yesterday. Stated my case that I felt they had made no effort to seek another role for me or make any reasonable adjustments. Also they are using out of date medical information. Also we have a Long Term Incapacity scheme for people on long term sick. In you are accepted onto the scheme you cannot be subject to any disciplinary action. The only criteria is there should be a liklihood you'll return to work within 2 years. I was denied entry which in my opinion was wrong.

Likewise I pushed my work record as well. We'll see what happens, the longer this goes on the less I want to work there to be honest, kind of sickened by it all.

I should hear in the new year and see where I go from there.

I believe I have 3 months to bring a claim for unfair dismissal, I assume as long as you start the ball rolling in that timeframe, you wouldn't be excluded by any time bars?

[eforegg]

Meant to add my employer relates to a previous owner of my username. If that makes any sense.

As a further footnote to this case, it was pointed out there was an error in the official letter outlining the reason for my dismissal. They had written dismissed on Capability grounds when it should have been Medical Capability. Could this mistake work in my favour?

[advisee]

Originally Posted by eforegg

Meant to add my employer relates to a previous owner of my username. If that makes any sense.

As a further footnote to this case, it was pointed out there was an error in the official letter outlining the reason for my dismissal. They had written dismissed on Capability grounds when it should have been Medical Capability. Could this mistake work in my favour?

All mistakes work in your favour! Lets see what happens in the New Year. As regards the deadline, its basically three months from the date of the dismissal - this is normally pretty strict. Depending what happens with the appeal, go to a solicitor and I'm sure they'll get you a good settlement.

Do you feel able to undertake some other form of work, either in their company or elsewhere? 10 weeks money will soon run out.

[eforegg]

Thanks everyone for your input.

Depending on outcome of appeal I will speak to a solicitor.

Re work situation. I hopefully will feel able for some sort of work in the next 10 weeks. It will certainly not be at my former employer. I'll need to start looking and applying.

[eforegg]

Sorry if this seems like commonsense just mentally kind of toiling with all this now.

It's over 3 weeks since my appeal (20th December)and I've heard nothing. Granted we've had the Christmas/New Year holidays but I'm starting to get a bit nervous.

Should I start to think about contacting some sort of legal representative at this time or should I be waiting till I get formal note of the appeal verdict?

Thanks for any help you can probably tell I feel totally out of my depth here

[paulgmb]

Make sure you don't miss the deadline for the Employment Tribunal, 3 months minus 1 day from the date of your dismissal.

Incidently, regardless of whether or not your employer recognises a Trade Union, they cannot refuse your legal right to be represented at formal hearings if you are a member in your own right.

Regards,

Paul.

[inline66]

I read your post with some interest as I find myself in a similar position to you. I was dismissed on incapability because of a back/hip condition recently.

Although I have no legal training I have investigated the Disability Discrimination Act (DDA).

I would now be considering progressing your complaint to the employment tribunal. I would not wait any longer as three weeks is plenty of time for your employer to at least let you know their intentions. Each week with no answer eats into your time to make a complaint.

In order to prove you have a disability for the purposes of the DDA you need to prove three things.

1. The condition is permanent - that means it has lasted more than a year or is likely to last more than a year
2. The condition is substantial - that means it is more than minor or trivial
3. The condition affects your day to day activities - in your case I suspect sciatica and depression (and maybe stress) to effect you mobility (walking, traveling in a car, sitting at a computer etc...) and concentration

From the description you have given it would appear to me that your condition does have a substantial effect on your day to day activities. You would need to prove that your condition is permanent and in your case it means that it is likely to last more than a year. Unless of course it has already lasted more than a year, when did the condition begin (note this may be before you actually went off sick). In any event given that the employer's occupation health specialist believes that "[your] circumstances would be covered under the Disability Discrimination Act" then I suspect that you would be able to prove to an employment tribunal that you meet the requirements of the DDA.

You need to be assiduous with regard to gathering information as this information is evidence.

Make sure you retain your dismissal letter and any other communications regarding your sickness and dismissal. Do you have a copy of the occupational health report. If not you are entitled to a copy of any medical report produced by a medical doctor registered with the GMC.

[eforegg]

Inline 66, thanks for taking the time to post.

I had been off with the condition for roughly 17 months when I was dismissed albeit I had been back to work for a month after 11 months of initialy being off sick.

I guess my problem is I hate to label myself and feel a fraud saying I'm disabled as I dont consider myself that.

I have kept copies of all the letters and actually wrote to the Privacy Officer at my employer to get a copy of my file. Again as yet I've heard nothing but that was only last week so thats not unreasonable at all.

Re the appeal, it's almost a month since they heard the appeal and still nothing. Your right though my concern and the reason for posting further is I dont want to close any avenues open to me through ignorance. Part of me feels (and I may be paranoid here) that they are delaying replying trying to eat into the 3 month period where I would have to submit a claim to employment tribunal.

I went to CAB when I was first dismissed and took them the dismissal letter but the girl there was almost dismissive. . ."well you have been off a while so your employer is probably within their rights" was the inference. Frustration of contract she called it. She did say you've nothing to lose by appealing so why not. I think I'm stuck with those thoughts and figure these folk have far more experience than me so perhaps I'm barking up the wrong tree and should move on.

This is a great forum though and the help and information people give with no expectation of anything in return is heart warming to say the least.

[inline66]

Oh, I misread your original post, I see that your were off sick from April 2006.

I feel the same as you with regard to my condition. I believe the term disability to be misleading. I feel it would have served the public better if it had been called the “Health Discrimination Act”.

From the information you have provided your case appears to me to be worth consideration. Your condition appears to have a permanent substantial effect on your day to day activities. I draw your attention to the definition of substantial. It means “more than minor or trivial” as decided in the case of Goodwin v Patent Office. Your employer does not appear to have given consideration to the possibility that you maybe suffering a disability as defined in the Disability Discrimination Act.

Please note although you may wish to bring a complaint for unfair dismissal, what I have been discussing in my previous post was a complaint for discrimination under the Disability Discrimination Act.

With regard to unfair dismissal this is not an area which I have, as yet, gone into detail. However, I understand that a claim for unfair dismissal is predominantly a procedural issue. Consideration to warnings that you were issued prior to dismissal and the employer following their own company procedures would be relevant.

In deciding to take a complaint to the employment tribunal I believe that you need to consider the following:
1. What are your objectives, do you want to be re-instated or do you want financial compensation (or maybe both or even none).
2. Do you have the financial resources to engage a solicitor to prepare the case and act on your behalf at the employment tribunal. Alternatively do you feel comfortable bringing a case to the employment tribunal yourself (maybe with help from a solicitor funded by legal aid to prepare for the employment tribunal).
3. What are the strengths/weaknesses of your case and what are the strengths/weaknesses of the employer’s case

In my opinion your should avoid a decision based on pride i.e. you feel that you have been wronged and instead base your decision by giving consideration to such things as re-instatement, compensation, chance of winning/losing the case, resources available to you (including time, finance, personal fortitude, support etc..).

It is worth noting once you have made your complaint and associated case (e.g. your doctors report, employers occupational health report, sickness notes, letters, statement from colleagues or friends ) then it is the responsibility of the employer to prove that you were not discriminated against under the Disability Discrimination Act.

I suspect your employer will argue that in the first instance that you do not have a disability. If they were to accept that you did have a disability then they would argue that they were entitled to dismiss you because there were no reasonable adjustments that they could make in order to keep you employed (indirect discrimination can be justified). You should consider as objectively as you can what adjustments could have been considered such as continued part-time working, home working, re-deployment within the organisation etc. These adjustments may even be codified into the company standards.

I would consider doing the following soon whether you eventually decide to take the case forward or not.

1. If you do not already have it, request a copy of your medical report from the occupation health specialist
2. Make a request to your employer for access to your personal records under the Data Protection Act. This can take up to 40 days so it would be advisable to do this soon.

[eforegg]

Just an little update of where I am now.

Emailed my ex employer last Thursday to ask if they could give me an idea when I might reasonably expect a decision. Seems they sent out their decision on the 10th January. Never arrived at my end. Seems they sent this letter by standard mail, although everything they have previously sent, invitations to meetings etc all sent recorded delivery. . .typical!

Finally got to see the decision on Saturday. In line with everything else the letter's just riddled with mistakes, in my opinion. From the date of the meeting being recorded incorrectly (they say the appeal was heard on the 17th December was actually the 20th, incredibly shabby I think) to the company logo being printed over some of the text (should always be printed at the top of the page. Had I sent a letter out like this when employed by them, I would have been pulled up about it. Funny how rules are different when the shoes on the other foot. Maybe it's my naivety but I would expect emploers to be squeaky clean in all correspondence in events such as these)

I had raised 4 individual points. I reiterated exactly why I felt the decision was wrong and thought I had got across exactly my points. The letter was outlined as follows;

Appeal point 1 [etc], then the query in question form and then my employers decision. I've read and re-read this letter and 3 of the questions in no way relate to the grounds I had appealed on. Bad enough being dismissed originally but for the appeal to not even recognise my points of appeal I feel is shocking.

I actually done something a bit naughty in the appeal and wondered how best to use this. I actually recorded the meeting on my mobile phone. I had actually done the same at the meeting where I was dismissed. My reason for this was at a previous meeting earlier in the year a transcript was sent (as taken by the companies note taker) and just didn't reflect the content of the discussion. Call it paranoia or whatever I just felt I couldn't trust them hence me recording the discussions. I'm transcribing them just now. I realise I should have made all aware this was happening however there is no way they would have sanctioned that. What they do though is confirm especially in the appeal hearing that what was discussed was not what they investigated.

I also have a meeting with the CAB employment specialist in my town on Wednesday so hopefully something positive will come out of that.

[Sidewinder]

Originally Posted by eforegg

I actually done something a bit naughty in the appeal and wondered how best to use this. I actually recorded the meeting on my mobile phone. I had actually done the same at the meeting where I was dismissed. My reason for this was at a previous meeting earlier in the year a transcript was sent (as taken by the companies note taker) and just didn't reflect the contact of the discussion. Call it paranoia or whatever I just felt I couldn't trust them hence me recording the discussions. I'm transcribing them just now. I realise I should have made all aware this was happening however there is no way they would have sanctioned that. What they do though is confirm especially in the appeal hearing that what was discussed was not what they investigated.

Not too naughty at all and there is recent relevant case history which supports your actions. In the case of Chairman and Governors of Amwell School v Dogherty, Dogherty secretly recorded both the open part of the disciplinary hearing and the closed deliberations. At a subseque