26th July 2008

Hi everyone. Sorry to hear of your situation eforegg. I am myself currently off work with depression, and have been so for about 3 months. This week I recieved a letter from my employer, informing me that, "...Owing to comments received from our medical officer, one of the avenues which may be explored could be the termination of your employment on ill health grounds...". I have a meeting at home on Monday about this with my boss, so it looks like I could well be heading down the same road as your on at present !! Anyway, continuing best of luck, and Ill come back and keep you informed.

Update 30th July 2008

It seems that my employers had made up their mind before even arriving at my house on Monday and as such I was told they were terminating my contract on ill health grounds, as my continued absence was "unsustainable" by the business. Seeming as how I was employed by the largest coach and rail operator in Europe (I will leave the name for you to guess), I find it extremely difficult to believe this. In the last 3 years I had had 2 periods of 6 months each away from work with the same illness, and basically although their medical officer reported that I would make a full recovery and be fit for work, he surmised that the chances of recurrence were quite high, and it is this comment that I believe my employers have based their decision on. They have offered me almost £6000.00 in severance pay, half of which is subject to tax and NI. I will be appealing as soon as I receive my termination in writing, which no doubt will be turned down, so then it will be on to an ET for unfair dismissal and disability discrimination. I think I am still shocked at the fact that I have been dismissed after 9 years with the same company, and feel they could have done so much more to help in my case.

So you are now on your third period within 3 years, it seems the medical officer made a correct judgement.

I am no expert, but I would think you wouldn't have the success your hoping for in an ET.

You are classed as disabled, but does your position within the company allow for 'reasonable adjustments', if that is the case then you could go for unfair dismissal.

Absence from work as you describe can be the basis of a fair dismissal, as it can make the employee incapable of doing the job.

You should of course be offered a right of appeal against the decision when it comes. If no right of appeal is offered then this would be procedural breach.

As for your intended claim for Disability Discrim this will depend on numerous factors including (but not limited to):

a) The type of job you did and what reasonable adjustments could have been made to accommodate your disability

b) Whether your employer looked at alternative jobs you could do in their organisation

c) What exactly the medical evidence said and whether your employer has attempted to obtain up to date medical evidence

d) Whether you were warned in advance that dismissal was a possibility

If an employer follows all the correct procedures a dismissal of a disabled person can be a fair dismissal.

Thanks for your opinion Coniff. I am under the impression that yes, they could of made reasonable adjustments quite easily within the company - the fact that over the 2 months I have been off they have made no attempt to meet with me to even discuss this matter I find incredulous. I think over the last 2 months I have received in total 1 phone call and 2 emails - the last of the emails confirming the meeting at my house. Like I stated previously, with the resources available to them, Im sure there is a lot more they could of done for me being the long standing employee that I was.

Hi Elche...In answer to your comments :

a) The type of job you did and what reasonable adjustments could have been made to accommodate your disability

* Reasonable adjustments could have quite easily been made by changing my position to a less stressful one.

b) Whether your employer looked at alternative jobs you could do in their organisation

* At the meeting on Monday I brought up this subject and said that this had been looked at, but the look of suprise on their faces I dont think this was ever discussed, certainly not with me.

c) What exactly the medical evidence said and whether your employer has attempted to obtain up to date medical evidence

* As far as I am aware the medical information was up to date, but the report by the medical officer was written BEFORE he received any information from my GP.

d) Whether you were warned in advance that dismissal was a possibility

* The only way I was warned was the letter I received a week before requesting the meeting, which said, "...Owing to comments received from our medical officer, one of the avenues which may be explored could be the termination of your employment on ill health grounds..." - which makes me think that the words "...may be..." and "...could be..." were not very honest under the circumstances as at the time of writing they had already made up their minds what was going to happen.

[quote=MRDO;1638729}

a) The type of job you did and what reasonable adjustments could have been made to accommodate your disability

1) Reasonable adjustments could have quite easily been made by changing my position to a less stressful one.

b) Whether your employer looked at alternative jobs you could do in their organisation

2) At the meeting on Monday I brought up this subject and said that this had been looked at, but the look of suprise on their faces I dont think this was ever discussed, certainly not with me.

c) What exactly the medical evidence said and whether your employer has attempted to obtain up to date medical evidence

3) As far as I am aware the medical information was up to date, but the report by the medical officer was written BEFORE he received any information from my GP.

4) Whether you were warned in advance that dismissal was a possibility

* The only way I was warned was the letter I received a week before requesting the meeting, which said, "...Owing to comments received from our medical officer, one of the avenues which may be explored could be the termination of your employment on ill health grounds..." - which makes me think that the words "...may be..." and "...could be..." were not very honest under the circumstances as at the time of writing they had already made up their minds what was going to happen.

1) If what you say is objectively true in this respect and provable, you would, assuming your medical condition brings you under protection of the DDA, probably win an ET case

2) If they cannot show some kind of audit trail at an ET that proves they seriously attempted to look at alternative employment they will probably lose an ET

3) This would only be relevant if the medical evidence was conflicting especially in respect of long term prognosis

4) You were therefore forewarned that dismissal was a possibility.

Hope this helps

Thanks for your comments and advice Elche, really helpful. I am doubting very much that my bosses will be able to provide any kind of audit trail for seriously discussing moving me to another position, as like I said he nearly swallowed his tongue when I brought up this matter. Im wondering what your opinion is about them finding out that I would intend to use this argument at an ET, and them falsifying that they did indeed seriously discuss this matter ? What is stopping them from doing that post-dismissal ?

Im wondering what your opinion is about them finding out that I would intend to use this argument at an ET, and them falsifying that they did indeed seriously discuss this matter ? What is stopping them from doing that post-dismissal ?

Ahh the reality and the theroy. You are spot on, in reality very little. If they are prepared to forge file notes of conversations, backdate documents etc., then the short answer is nothing.

If they have a solicitor advising them I would like to think that he or she would not condone this so this can sometimes help you.

In your favour tribunals are alive to this fact, and will be inquisitive in this regard if anything looks fishy.

Best of luck. Pls tip the scales if I've helped.

Thanks again elche...your very helpful. I will keep you and anyone else informed of any developments.

If you've been there for 9 years, can you not negotiate a redundancy settlement?

'unsustainable' is code for, they can't pay your wages, or whatever pay you are on indeffinately.

If the job's stressful and causing your depression, find another. "he surmised that the chances of recurrence were quite high"....probably quite spot on.

I don't understand why they should automatically look for another position for you. I know that under redundancy conditions, they are required to look at alternatives.

Anyway, if they deem that you are a liability and you ask for them to look for another position for you, all they'll say is that they've explored the possibilities and unfortunately there aren't any available positions. That is if they are indeed desperate to get rid of you.

You could argue your case and take them to court lasting months / years, which will probably add to your depression......

Hi Jase. I dont believe I can negotiate a redundancy settlement because I havent been made redundant, I have been fired ! The job in itself is not causing my illness but is a contributing factor, and now even more so because of their actions. The reason they should try and make alternative arrangments for my employment i.e. Move me to another position within the company - is because under the DDA, they have to. As elche mentioned, they will have to show some kind of audit trail to prove that they seriously considered the possibility of moving me to another position, not just say to a tribunal that they had done that. The fact is that within my part of the company, staff who have been off sick with illness/injury other than depression HAVE been moved to a different position, and hence in law my company is discriminating against me because I suffer with recurring depression, and they are fearful that because of my condition, my absence could also recur. If I was working for a smallish company, I could totally understand their actions and the way they have dealt with me, but we are talking about a multi-billion £ company here, and the fact that they have said my sickness level is unsustainable is farcical, especially as in this instance I had only been absent since the beginning of May. I am not a DSS dosser, I am someone who has been in full time employment for 9 years with the same company, and as such I am very upset that I have been treated the way I have, and as such will fight to get my job back.

If you've been there for 9 years, can you not negotiate a redundancy settlement?

Redundancy refers to a specific set of circumstances as defined by s.139 of the ERA 1996.

No point in going into the definition now, but what i can say is that there is no suggestion on the above facts that a redundancy situation exists.

What you can do is attempt to negotaiate a Compromise Agreement where you walk away with a payment in return for not bringing a DDA claim. Always take independent legal advice before signing any compromise agreement The agreement should make allowance for this.

Let us know what you end up doing. Don't forget to appeal the descison to dismiss if you are offered the opportunity.

Thanks Elche...Will update as and when anything new...Thanks again.

Redundancy refers to a specific set of circumstances as defined by s.139 of the ERA 1996.

 

What you can do is attempt to negotaiate a Compromise Agreement where you walk away with a payment in return for not bringing a DDA claim.

That's what I meant. Sorry. They can't just dismiss the OP whilst off long term sick anyway, so there should be a good chance of getting a settlement.

They can't just dismiss the OP whilst off long term sick anyway, so there should be a good chance of getting a settlement.

Not trying to criticise any helpful posts, but the legal reality is that a medical capability dismissal can be a fair dismissal if handled properly, and it can happen whilst the employee is still away sick. The following (not my words) should explain more:

"In the leading case of International Sports Co Ltd v Thomson 1980 IRLR 340 the EAT said that what is required where there is an unacceptable level of intermittent absence is:

• a fair review by the employer of the attendance record and reasons for absence
  
• an opportunity for the employee to make representations, and
  
• appropriate warnings of dismissal if things do not improve.
  

If there is no adequate improvement in the attendance record, the EAT said, dismissal will be fair."

And YES i know this relates to numerous short-term absences as opposed to this problem (long absence) BUT the same principal applies subject to the additional steps, that the employer would have to prove they had considered (see above) imposed by the DDA

Hope this helps.

Hi...Just an update in whats going on. I had to phone my company today due to the fact I had not received my letter of dismissal - they had sent it to the wrong address. No suprise there. Eventually I got them through email, and Ive posted them below together with the medical report. Any opinions on their case would be most helpful as usual.

Letter Of Dismissal

I am writing further to our meeting which was held on Monday 28th July 2008 when we discussed your future employment with ********. ****** *****, Employee Relations Manager was also in attendance.

We discussed the latest report we had received from *****, dated 27th June 2008, and also provided you with a copy for your records. As you are aware, the Senior Occupational Physician at ***** found it very difficult to give us any medical assurance regarding a sustained attendance at work and he therefore could not see any reasonable likelihood that you would in fact be able to attain a sustained attendance pattern in the future.

As discussed with you, this is a grave concern to the Company, along with consideration to the amount of time you have already been absent from work since 2004.

Therefore, as advised to you in the meeting, regrettably a decision has been reached that your contract of employment should be terminated on the grounds of ill health, with effect from Monday 28th July 2008.

This has been a very difficult decision for me to reach but under the circumstances, I feel it is the only decision available to me,

I can confirm that you will receive severance pay equivalent to 8 weeks of your basic salary, free from tax and national insurance deductions, and in addition to this, 8 weeks notice pay, which is subject to tax and national insurance deductions.

If you wish to appeal against my decision, this should be made to me in writing within 7 days of receiving this letter.

Yours sincerely

Medical Report

· As regards his "fitness to return", I am confident that in the foreseeable future he will make a sufficient recovery from his recurrent depression to return to working.

· I have reviewed his sickness absence which, as you are aware, now appears to be well established and has over the years been predominantly due to recurrent bouts of depression. These have not been directly attributed to work related factors and he has been offered through various sources appropriate support and treatment to various degrees of success and compliance.

· It is for this reason I would find it very difficult to give you any medical assurance regarding any sustained attendance as he appears to have a recurrent sickness absence problem despite appropriate interventions. In the balance of probabilities I cannot see any reasonable likelihood of him being able to attain a sustained attendance as his pattern of absence now appears to be well established.

· Having reviewed his file and previous occupational health advice, I do not feel that any further formal occupational health consultation with ****** will uncover any further relevance medical information pertaining to his occupational health and welfare. However, as you are aware, ******* was last seen by Dr ****** in May of this year who applied for a further report from his GP at that time. This request has been chased and his general practice have informed us that they will hold the report that has been compiled until the 7 July under the three weeks' access to medical report Act. They will then release it to us or before then if Mr ****** gives his authorisation. I will of course keep you informed should this report reveal any further relevant information pertaining to his occupational health and further advice that you may find useful in managing this situation.

Ive obviously edited these of names etc. for confidentiality reasons.

H

Letter Of Dismissal

1) Therefore, as advised to you in the meeting, regrettably a decision has been reached that your contract of employment should be terminated on the grounds of ill health, with effect from Monday 28th July 2008.

 

2) If you wish to appeal against my decision, this should be made to me in writing within 7 days of receiving this letter.

not got time to read the med report right now but:

1) No decision should have been made at the meeting

2) You should be offered right of appeal to someone other than the person who made the original decision.

Big company that doesn't seem to get procedure right, - lol

Big company that doesn't seem to get procedure right, - lol

Yes...Thats what Ive had to work with for the past 9 years !!

There is no reason why the letter of appeal can not be addressed to the same person but the appeal hearing should be heard by someone else.

Yes they are aware of this and the appeal will not be held by the same person...

There is no reason why the letter of appeal can not be addressed to the same person but the appeal hearing should be heard by someone else.

Technicaly 100% true - but this is just not best practice and merely invites a claimant to argue that the appeal process was not objective.

Best practice would be to say, "If you wish to appeal against my decision, please write to (NAME i.e. not me) within X days ...."

Technicaly 100% true - but this is just not best practice and merely invites a claimant to argue that the appeal process was not objective.

 

Best practice would be to say, "If you wish to appeal against my decision, please write to (NAME i.e. not me) within X days ...."

Totally agree with you but sadly not many follow this.

I had a bizarre case once where a member put in a grievance against his dept head. It was the same dept head who heard the grievance as it was in the company disciplinary and grievance procedures that the first hearing is always head by the dept head . Ok the member appealed and this was heard by the assistant general manager and the member won his grievance.

We had to ask, how he was ever going to get a fair hearing in the first place! However as pointed out to us, the appeal process is in place to cover this :confused:.

Totally agree with you but sadly not many follow this.

So true ..... but the fact they don't keeps me in a job lol

Thanks Elche. I have my appeal on Monday so I will let you know what happens. I dont think there is much chance of being re-instated at this hearing as it is being held by another Manager who works with the one that dismissed me, and also the same lady who attended my dismissal hearing. They are the only 2 managers that work together on a day to day basis in the same office so I doubt very much that this managers mindset is going to be any different from the others. I would rather take my chances at a tribunal so do not want to give too much away at my appeal, apart from asking them if there is any audit trail for discusssions that took place regarding alternatives to dismissal, i.e. phased return, less hours, change of duties etc. As always I welcome members opinions on this matter.

Thanks also Cal for your comments...

I would say good luck for the appeal but we both know whats going happen really !

From practical point of take some notes and get an independent rep if you can. Start planning your ET case now you may have a strong case especially re audit trail.

Get some professional advice and keep us posted..... which is your local ET?

Thanks Elche for the luck - haha but yes we both know what is going to happen ! Im not being represented at the appeal as I dont think it warrants it. If they give me my job back then fine, but if not then its obvious where this is heading. I will have legal representation at my ET, which I am sure will be in London. Of course yes I will keep you posted. The plot thickens !!