Hi all.

My partner is being made redundant soon. He has worked for the company for over 11 years & has been given the required 11 weeks notice. He suffers from rheumatoid arthritis & the company were aware of this when he was employed. As is the way with this disease, his condition has deteriorated over the years & he has had increasing, but thankfully, short periods of absence, as flare-ups have increased in frequency & intensity.

The company have not been unreasonable about this & the company doctor has examined him on several occasions & confirms that he falls within the scope of the Equalities Act & is expected to have more absences than an average employee.

This has not prevented action over the years though & he has been on a final written warning for some months now. He has had no absences for anything other than the arthritis for over a year, until 2 days this week with a severe cold/flu. His symptoms are always worse as one of the drugs he takes, compromises his immune system & means that he is more severely affected by relatively minor bugs.

Now his manager tells him that as this is not an equalities covered absence, he is being referred for possible further action, which is potential dismissal.

Couple of questions. Is it reasonable for the company to take action on just 1 non equalities related absence in over a year & can the company pursue a capability issue to dismissal with only 9 weeks of employment left? Even if they can, would it be wise? I just wonder how a tribunal might look upon this if it came to it.

There is a fairly substantial redundancy payment in the balance here & with little likelihood of him holding down a full-time job as a new employee elsewhere, this money will be much needed.

Any advice much appreciated.

First of all, can I say that your partner has my utmost sympathy. My poor mother suffered from this horrendous condition and much of the way that you describe his situation is very familiar.

As to the capability procedure, the obvious question really is 'what is the employer's policy on sickness absence'? There should be clear guidelines which outline at what point disciplinary (or capability) procedures may be instigated and what the next steps should be. Similarly, although any disability related absences must have different trigger points, has he ever been advised what these are? You mention that there has been no sickness absences for over a year prior to this, other than for RA flare-ups, so one has to ask why a single instance should now be triggering further action.

Also, the final warning? Exactly how long has this been on file and how long is it to remain on file? Any prior disciplinary sanctions should always have an expiry date - they should not hang like a Sword of Damocles forever more.

If your partner does not have the company's absence policies and the other information in his possession then he needs to ask for it, otherwise how will he be able to defend himself?

Hi Sidewinder. The final warning was re-issued following a hearing in November & lasts for 12 months. We are under no illusion that had redundancy not come (the site is closing it's not selective), his days were probably numbered anyway. As to specifics, no firm targets are set, it's very much up to the operations manager in this case, after consultation with HR. I was in a similar position myself a few years ago but not at final warning stage, where an illness covered by the then DDA, caused me to have frequent absences. I found myself being called to a hearing following 1 absence after a written warning & immediately launched a grievance that every absence could not be used as an excuse for another hearing. Whilst I lost the grievance, a "quiet word" was had with the manager concerned & the matter dropped. We cannot believe that they would go down this route so close to the end but it now seems very possible even likely. Especially as we have heard today that the company are concerned at the number of people going off sick since the notices were issued & may be looking to make an example of him.

Well if they are genuinely looking to make an example, then they need to act very carefully. You are obviously aware - as they should be - that taking arbitary action against an employee with a known disability is likely to sail very close to a potentially costly disability unfair dismissal case, and I would say on the face of it that using a single sickness absence on top of disability related absences in order to escalate a case is very dangerous. This is especially where the most recent absence could easily be linked to the disability and the ongoing treatment of that condition.

What precisely triggered the November hearing - in terms of number and frequency of RA related absences? What was the outcome? Was it a case of 'no further RA related absences or was a different trigger set at which the FW might be escalated to a dismissal? Any capability procedure should set out clear tagets for improvement and in the case of disability related absences the employer must also consider any 'reasonable adjustments' which might be necessary to enable the employee to continue to work.

So, has the employer done this? Whilst a separate trigger point for absence is one example of a 'reasonable adjustment', has the employer (and has your partner suggested) anything which might enable him to work rather than to sign off as unfit for duty? I appreciate that most likely this would be about pain management with a flare up, but it is essential that the employer at least considers whether anything might be done to help him to manage to work with the condition.

Your partner might be advised to seek the advice of his GP or primary care consultant if possible if he is under Rheumatology care. IT may be possible to get an opinion that the recent viral illness was most likely caused by immuno-suppressant medication which could at least make this a disability absence rather than anything else, which I think is a point he needs to attack. With that qualified opinion he might also get a further referral to the company physician who would most likely support that position.

When is the hearing scheduled for? He certainly needs to disagree with the manager's opinion (as being unqualified) in determining the absence to be non-disability related and ideally to be able to back this up with evidence - either medical or even using outside sources (online research?). He also needs to look at whether correct process has been followed in accordance with published policy (as per my original point) or whether the employer is acting on the hoof.

Ultimately the employer CAN use capability to dismiss a disabled employee, but they need to be scrupulous and absolutely transparent in their actions. The timing of this may well be a red herring, but on what you have said, I suspect that it may well be deliberate. Is your partner a member of a Union? Have they been consulted?

It could be that they are hoping to save a very small amount of money by using this rather than redundancy. If it is the case it is a very stupid plan as it will leave them open to a claim that will cost them an awful lot more than redundancy pay.

Is there a pension scheme that he is a member of? Does it offer an ill-health retirement plan. If it does it may be the company has an eye on the cost of thet as well. It looks like somebody has been silly and tried too hard to save money rather than having a genuine sickness/disciplinary issue.

Thanks for the replies. There were no specific targets set as such Sidewinder, it's always "looking for an improvement - monitoring the situation - blah blah". The November hearing was triggered as a result of number of absences, every so often somebody has to look as though they're doing something, although another trip to the company doctor was organised. He is in the union & whilst they try, they are not that effective & really just see that everything is done by the book.

To ericsbrother, sadly he isn't in the pension scheme, shame as it is a final salary scheme & has been mentioned more than once that if he had have been a member, they would have gone for ill-health retirement. Cost wouldn't have been an issue as it's an industry scheme rather than a company one. We just have to hope that if they do call a hearing they see some sense & take no further action, luckily it is the same ops manager who went for no action last time & he is actually a former union rep, so is more inclined to leniency.