Dismissed Again - Incapability - Appeal Monday

[Dindal]

Sorry this is long but I have tried to wrap it up as short as possible I have tried to include as much as I can.

I am a 38 year old male who has suffered from migraine all my life. Up until recently I have been getting about 12 a year. So they had not been affecting my life too greatly.
I Started work with a major brick manufacturer in June 2000. I worked 39 hours a week, sometimes with the option of 12 hours overtime. They were aware of me suffering from migraines from the start of my employment.
I had odd day off due to migraine normally 1 day sickness at a time, which was taken as unpaid sickness, if I had holiday days remaining I tried to use them as I couldn’t really afford for shortage in my wages.
My 1st paid sick leave was in 2003 which was for 1 week, so they could see I was not abusing the sick pay.
In April 2006 disciplinary action was started with regard to absenteeism, mainly migraine related. I received a first official verbal.
Disciplinary Hearings continued and In January 2007 was on my final warning. My Migraines had got worse and was signed off sick In February. They asked if they could get medical notes from my doctor, which I agreed. I was also referred to a neurologist by my doctor, which I advised them about and told them the appointment was for May 2007.
The Occupational health advisor confirmed that I suffered from migraines. The report was never discussed and I was dismissed in April 2007 due to absenteeism.
I appealed and was reinstated In May 2007 with a clean disciplinary record, due to mistakes in the disciplinary procedure.
I was to return to a meeting with my manager on 6th June 2007, but then I would be suspended with full pay on Health and Safety Grounds until I had a full medical examination and a risk assessment was carried out. They said the onus was on me to prove I was capable of doing my job. They said there would be A back to work plan drawn up after the medical and risk assessment. Although I was not happy with this I agreed, but I would not sign the agreement as it stated terms which I knew I couldn’t stick to, I spoke this through with my manager at the meeting. He also told me that there was discontent in the workplace as work colleagues thought I had put the works at risk. This played on my mind considerably.

In June 2007 I had a medical examination by their occupational health advisor, and In July 2007 the risk assessment was carried out in my absence as I had a migraine on the day it was being carried out. Both medical and risk assessment said that I was capable of doing my job, and there was nothing in the work place causing my migraines. They advised that it would take time to get the right medication for me and that I could always suffer from more migraines.
I was asked to return back to work on 6th August 2007, however when the time came for me to go back, I felt anxious and was suffering from daily migraines. I had had no contact apart from letters with my work since the June 2007 meeting with my manager. They visited me on 9th Aug 2007 at my home I was suffering with migraine on the day of the visit, they accused me of being at home to look after my kids and told me that if I did not return after the shut down period (annual Holiday), that I would deem myself resigned. Even though they thanked me for seeing them as they could clearly see I was unwell.

I returned on 28th August 2007, there was no back to work plan and the reasonable adjustments that they had made were that my partner could phone in for me when I was unwell (even though she had since the start of my employment) and that I could go in late to work on the days that I had migraine, although this was not clearly stated anywhere. I worked 3 days and suffered a migraine on the Friday, which I think was due to stress and the fact work colleagues that I had previously got on very well with were either ignoring me or very abrupt.
I was signed off by my doctor and my medication was changed this made me very tired and I was depressed because of this. Various medications were tried and I was starting to get my migraines under control a bit better.

I had been off for 17 weeks, when in January 2008 they attended my home even though they said I looked a lot better than the previous visit they dismissed me on Incapability through ill health.

I have an appeal hearing on Monday 25th Feb 2008, could anyone please advise me on a few things.
I am only appealing now as part of procedure before taking them to a tribunal. I do not feel that I could go back as the stress of it all has really taken its toll on my health and my family, financially and emotionally. I feel they have failed me twice.

If I get my job back do I have to accept?
If I refused to go back would the tribunal accept my claim.

I have read up on Disability discrimination and feel like I would have a strong case, but am unsure how to present a case as there are many issues regarding the whole case.

Any help would be greatly appreciated.

Please Help

[KENZIE394]

Dindal,

I think that from reading from what you state the tribunal would be in favour of the employer as they will state to the panel that they tried everything reasonably possible to aid you in returning to work.

They paid you to stay at home in June 07 whilst they arranged occ health then you mention that you failed to attend your assessment in July as you had another migraine? Was you not suspended at this point?

You failed to return on the 6th August and they visited you on the 9th. They said your partner could phone and you could also come in late. What more can an employer possibly offer ? You then went absent just three days after returning to work for a period of 17 weeks. You also state that work collegues were now ignoring you or abrupt, they will also use this as an argument for you not returning to the workplace.

Good luck in whatever avenue you may take.

[Dindal]

They paid you to stay at home in June 07 whilst they arranged occ health then you mention that you failed to attend your assessment in July as you had another migraine? Was you not suspended at this point?

Yes I was suspended at this time, I did not want to be suspended from work, even though it was full pay I would have preferred to go back straight away, as I had already beeen away from work for over 6 weeks. I had made them aware of this but it Seems to me as if they did'nt want me back and they were trying everything they could to aviod this.
Unfortunately I cannot say when I am going to get a migraine, so I can't see what difference it would have made, being suspended or not.

They were ok with doing the risk assesment without me, although there there was need for them doing the risk assesment in the first place, as they were already aware that it was nothing to do with the jobs I was doing at the time. Otherwise I would have suffered with more migraines than I had been getting. Nothing had changed.

They were saying that they were short staffed, so why exclude me from the workplace. Even if I had, had to attend work once a week just to visit the office I would still have had contact with the works, I feel this break of contact made matters worse. All contact from work ie letters was from head office people that I had never even worked with.
They admitted they had made mistakes but were now passing the blame on to me, saying the onus was on me to prove I was capable of doing my job, which I had been doing perfeclty well up till this time.
Should it have not been up to them to prove that i was incapable. Nobody else was treated like this.

You failed to return on the 6th August and they visited you on the 9th. They said your partner could phone and you could also come in late. What more can an employer possibly offer ?

I now know that one of my main triggers for my migraines is stress related, I feel they added the stress to the situation by suspending me in the first place. There was no back to work plan stating any of these adjustments like they said there was going to be. So they were not clear. My partner had always rung in for me anyway. So no change there.
They originally wanted me to sign a letter on 6th June 2007 before any medical or risk assesment had been carried out saying that I would personaly ring in before 11am, the works handbook states that they should be notified before end of the day.
They were making it more difficult for me to report in, knowing that I was unable to do ring in if I had a migraine, the only place it notes that my partner could ring in and that I could attend late, was a recommendation in one of the occupational reports, this was not actually agreed to by anyone.
Yet they are now saying that I have not stuck to agreed terms, but there were no terms for me to agree to as there was no back to work plan in place.

Up until this year my migraines were not too bad if I could go back to bed and sleep them off I would normally have been feeling a better by about 11am, however this year they have been harder to shift and have been lasting, sometimes for a few days. It would not have been ok to turn up at work drowsy from the new medication that I started taking around August, as I would not have been able to operate machinery safely. The occupational health adviser had advised them that it could take time to get my medication right, I had tried several and there were still different ones I could try.
In September 2007, my doctor signed me off for migraines and work related stress, occupational health noted this in one of there reports to them in november and advised that they talk to me about it, but nobody has even spoke to me about the stress side of it, apart from a letter to inform me in Jan 2007 that they wanted to visit me at which it was likely that I was going to be dismissed. They seem to ignore everything even suggestions from the occupational health.

You also state that work collegues were now ignoring you or abrupt, they will also use this as an argument for you not returning to the workplace.

My manager had already informed me that their was discontent in the workplace at the June 07 meeting. Why were my collegues now ignoring me, I was bound by confidentiality, why was there discontent in the workplace, they had obviosly got the idea from somewhere that I had put the works at risk.
I also partiticipate in a dream team with a number of my colleagues one of them had had made a sarcastic coment on the web site, saying to another collegue about their buddy with a forever headache, how did he know what I was absent for as if it is supposed to be confidential?
How can they use as an argument for me not returning to the workplace?

Thanks for your Views

[Conniff]

Sorry to say Dindal but I have to agree with Kenzie, they do seem to have gone out of their way to accommodate you.

You mentioned 'disability discrimination', are you registered disabled?

Your colleagues are probably a bit miffed at having to keep covering for you and your unreliability wont be conducive to moral in the workplace and the employer also has a responsibility to the whole workforce.

[Dindal]

You mentioned 'disability discrimination', are you registered disabled?

I am in the process of claiming for disabilty living allowance, but as far I understand from what I have read on the disabilty Rights website I do not have to be registered disabled to be covered by the disability discrimination act.

The Occupational Health Adviser also stated to my employer in several of his reports that it is very likely that I would be covered by the act.

Your colleagues are probably a bit miffed at having to keep covering for you and your unreliability wont be conducive to moral in the workplace and the employer also has a responsibility to the whole workforce.

I can see what your saying but I was in a role where nobody had to cover my job, more of a floater covering other people if anything, I was one of only a few that could operate most of the machines and was doing more and more work with the maintenance side of things.

I wouldnt class myself as unreliable either, In the 8 years I was there I had a max of 25 weeks paid sick, 17 weeks of these were due to the period of sickness I was on when they dismissed me. Previously the longest period of sickness was 2 weeks with a viral infection.
We used to have the "Bradford Factor" in the canteen showing days off for all employees, I was never at the top.

Thanks for your views thou, although they are not quite what I would have liked to hear.
I have wondered on many occasion if its worth the stress of it all, but at least it will all be over monday and I can try and move on with life.

[Conniff]

I wish you the very best of luck with this Dindal and hope it goes your way.
Please come back on Monday and let us know how things went.

[simes]

Hi Dindal,

I'm afraid for my two cents the above responses are pretty accurate. You may well be covered by the DDA, only a tribunal can decided this, however even so this puts the onus on the employer to ''Make reasonable adjustments to enabel your return to work, they appear to have fulfilled ther obligation in this respect. The only ground for appeal standing here I would think would be failure to follow company procedure (if indeed there was a failure) perhaps an avenue to investigate?

[inline66]

If you were suffering a disability in accordance with the DDA then in my opinion the disciplinary hearing of April 2006 constituted direct discrimination in accordance with the DDA. It is clear to me it is direct discrimination because other employees with the same or worse attendance record (who presumably were not suffering a disability) were not being pursued under the Dismissal and Disciplinary Procedure (DDP). There is no justification for direct discrimination.

The DDP then appears to have precipitated illness above and beyond your disability. Your illness appears to be attributable to the DDP which in itself is directly discriminatory. Your average attendance record prior to the DDP was good and as a matter of fact better than some of your colleagues and better than the national average of 8 sick days per year (statistics vary). When you remove the sick days due to migraine (which would appear to me to be a reasonable adjustment for a disabled person working for a large company) your attendance record would be even better and could not justify a DDP

Even if you didn’t suffer a disability your colleagues sending you to Coventry is harassment and as such a breach of Health and Safety Law.

Furthermore I believe your colleagues sending you to Coventry give rise to harassment in accordance with the DDA as the employer permitted an intimidating and hostile environment. This appears to have further precipitated your illness.

It appears to me that your employer failing to recognize your disability in a timely manner and provide reasonable adjustments in a timely manner has made you ill significantly above your original disability.

[Dindal]

inline 66
I was getting ready to give up until I saw your post.

I had my appeal yesterday and nothing has changed.

Felt totally worthless after appeal, they blamed everything on me and basically said that it was all in my head.

If you were suffering a disability in accordance with the DDA then in my opinion the disciplinary hearing of April 2006 constituted direct discrimination in accordance with the DDA. It is clear to me it is direct discrimination because other employees with the same or worse attendance record (who presumably were not suffering a disability) were not being pursued under the Dismissal and Disciplinary Procedure (DDP). There is no justification for direct discrimination.

They did admit to me again though that the whole process In April 2007 was a sham basically. But they wouldnt discuss before April 2007 because I had been reinstated.
Every time I brought up anything from last year they say it isnt relevant.

They fail to see how the pressure they have put me under from the begining of last year 2007 has affected me, and them keeping from work only made things worse.
Now they seem to be blaming me as they keep saying I have only worked 3 days since April 2007. They seem to be forgetting they suspended me on my reinstation at end of may.

I also had a disciplinary hearings in
July 2006, August 2006, November 2006 - 2nd written,
January 2007 - Final, April 2007, Dismissed.
In every disciplinary report it states my migraines are to blame.

The DDP then appears to have precipitated illness above and beyond your disability. Your illness appears to be attributable to the DDP which in itself is directly discriminatory. Your average attendance record prior to the DDP was good and as a matter of fact better than some of your colleagues and better than the national average of 8 sick days per year (statistics vary). When you remove the sick days due to migraine (which would appear to me to be a reasonable adjustment for a disabled person working for a large company) your attendance record would be even better and could not justify a DDP

In 2004 I had 14 migraines, 2 other illness.
In 2005 I had 12 Migraines, 5.5 other.
In 2006 I had 10.5 Migraines, 17 Other - 2 weeks was a viral infection
In 2007 up till april. 22 migraine days.

It appears to me that your employer failing to recognize your disability in a timely manner and provide reasonable adjustments in a timely manner has made you ill significantly above your original disability. .

Prior to Feb 2007, I could get rid of Migraine if I could sleep them off for a couple of hours and be feeling better by 11am.

If they had let me go in by mid-day on most days i'd been off with migraine, I would probably been able to attend work.

Since Feb 2007 thou I have been getting up to 15 migraines a month lasting for a couple of days at a time, between the medication im currently taking and the migraines some weeks I hardly get out of bed. I was starting to feel better this year and the medication was'nt making me so tired at the beginning of Jan 2008, have had a bit of a relapse since End of Januray 2008, because of my dismissal.

Even if you didn’t suffer a disability your colleagues sending you to Coventry is harassment and as such a breach of Health and Safety Law.

Furthermore I believe your colleagues sending you to Coventry give rise to harassment in accordance with the DDA as the employer permitted an intimidating and hostile environment. This appears to have further precipitated your illness.

I have worked there for 8 years, I could take normal factory banter, but to be blantly ignored by people I used to get on with, I was bound by confidentiality so could not even ask them what the problem was.
You know where you are not wanted, I'm not an idiot.

HR told me "we can't mitigate for the way employees deal with each other in the workplace"

I'm gonna keep fighting. They have given me so much written evidence.
I think I have a good chance.

Your post means so much Thank You

[inline66]

I do empathies with your migraine condition I used to suffer about 10 to 12 migraines a year myself. I have had very few in the past year as a result of my physiotherapy. I believe the cause of my migraine is posture.

You migraine record prior to April 2006 is higher than I thought from your original post. However your absolute number of sick days is not relevant it is the number of sick days in comparison with you colleagues. You say that you were never the top of the “Bradford Factor”. I assume you mean that your Bradford score was not the worst in comparison with you colleagues and that these colleagues who were higher in the Bradford score did not suffer a DDP. I had never heard of the term Bradford Factor before and I looked it up to find out what it meant. I get the gist of it now.

If you can prove you had a disability on or before theApril 2006 DDP and that your employer was aware of your disability or could reasonably have been aware of it then in my opinion you have been directly discriminated in breach of the DDA . What followed was a result of the breach of the DDA.

You seem to have suffered a significant detriment to your health. Going from 12 migraines a year to 15 migraines a month would not doubt leave you incapacitated, if my experience of migraines is anything to go by.

The detriment to your health is so significant that I would give serious consideration to making a complaint to the Health and Safety Executive as well as bringing a claim to an employment tribunal.

[Conniff]

The provisions of the Disability Discrimination Act 1995 (DDA) do not impose an absolute obligation on an employer to refrain from dismissing an employee who is absent wholly or in part on grounds of ill health due to disability.

There is no absolute rule that an employer acts unreasonably in treating disability-related absences as part of a totting-up review process or as part of a reason for dismissal on grounds of repeated short-term absence.'

[cal37]

Sorry to say but in my opinion the company has made "reasonable adjustments" under DDA. Conniff is correct that there is no absolute obligation on an employer to refrain from dismissing an employee under the DDA.

Also colleagues’ sending you to Coventry is harassment and should be dealt with under the disciplinary procedures but it’s not a breach of Health and Safety Law.

I doubt very much that this case would get before a EAT and if you were to visit an employment lawyer I’m sure he/she would tell you the same.

[inline66]

With respect to the two recent posts, it is always best to get a balanced view before making any decisions that is why I welcome alternate views.

I would agree that the DDA does not provide an employer with an absolute obligation to allow a disabled employee additional sick leave in comparison with a non-disabled employee in a comparable role. Indeed this makes straightforward sense to me.

I would also agree that they made reasonable adjustments after 28th August 2007 However the DDA imposes a duty to make not simply reasonable adjustments but to make “ [ reasonable adjustments] in all the circumstances of the case”. Whether they made ““ [ reasonable adjustments] in all the circumstances of the case” after the 28th August 2007 I cannot say as it depends on many factors such as the effectiveness of the adjustment, practicability of adjustment, costs of adjustment, financial resources of the employer and so on. Issues such as re-training and re-deployment, providing cover during sickness and so on should have been considered, not mandated, but considered.

I draw your attention to the DDA COP which when referring to reasonable adjustments states

5.20 As mentioned above, it might be reasonable for employers to have to take other steps, which are not given as examples in the Act. These steps could include:
· conducting a proper assessment of what reasonable adjustments may be required
· permitting flexible working
· allowing a disabled employee to take a period of disability leave

I suspect that Dindal would be in the best position (of the people in the forum) to know what reasonable adjustments were possible.

In any event both of these issues above are beside the main point that I am making.

The main issue I raised is that the April 2006 DDP was direct discrimination in breach of the DDA. The reason I believe this is because the DDP was initiated because of the disability (sick leave associated with amongst other things migraine) and it was discriminatory (at least one work colleague had a worse attendance record).

Furthermore reasonable adjustments should have been made at the very latest at the April 2006 DDP; the very same adjustments that they instigated almost1 ½ years later and following a proper assessment maybe even more adjustments.

With regard to the sending to Coventry I was thinking of a particular case Wigan Borougth Council v Davis. On review it transpires this was not a HSE case but instead it was an EAT case and deemed to be a fundamental breach of contract. My mistake.

However sending someone to Coventry, conducting at best an ill-conceived and at worst malicious DDP and direct discrimination in breach of the DDA could well be expected to cause somebody significant stress and lead to their ill health. This could well be a breach of Health and Safety law.

[Dindal]

Thanks for everyones input. Its good to see different opinions.

Quote:

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If you can prove you had a disability on or before theApril 2006 DDP and that your employer was aware of your disability or could reasonably have been aware of it then in my opinion you have been directly discriminated in breach of the DDA . What followed was a result of the breach of the DDA.