Medical Capability Dismissal

[installspark]

Are you claiming disability discrimination on your ET form? If so have you sent a DL56 - The Questions Procedure to your employer. This will be required at some point by an ET as part of any disability discrimination claim.

 

Also, although I'm not sure if his would apply in Scotland, if you are claiming on the grounds of disability discrimination and a grievance and appeal have been raised the time limit is extended by a further 3 months for a claim to ET to be made.

 

You may also find the following document useful in assisting your claim

 

Disability Discrimination Act 1995 Code of Practice - Employment and Occupation

[eforegg]

I am claiming both Disability Discrimination & Unfair Dismissal. I was planning on sending the DL56 after I had sent in my ET1 purely because I've been concentrating my efforts on the ET1 with the deadline approaching.

 

Not sure if the deadline is extended however rather than take any chances I"ll definitely have in before the 3 month deadline.

 

Thanks for the links.

[eforegg]

Back again, firstly thanks everyone who has been reading and posting for your patience and support. I'm sure everyone who has been through this/going through it will appreciate the stress and how good it is a site such as this exists. You can accuse the use of technology for all manner of ills, but the sharing of information and the empowerment that can come with that, has got to be one of the benefits of the 21st century. I'm rambling.

 

I've just completed my ET1 online and will be submitting soon. The sooner the better obviously however when I see it written out its enormous. I wondered if I'm perhaps going into too much detail at this initial stage. I guess I'm worried the employment folk dismiss and I dont even get past the first hurdle hence being exhaustive. Would anyone with be prepared (if I PM them or email them, I'd rather not post it all here, I guess there's a degree of paranoia in me) to have a quick look over what I've written.

 

Any help would be really appreciated.

 

Thanks again

[eforegg]

Just a bit of an update. Submitted my ET1 online over the weekend and today received a letter from the Employment Tribunals (Scotland) saying my claim has been accepted, etc, etc. I guess this is were the journey really begins in earnest.

 

Thanks to everyone who has helped get me this far.

[installspark]

The first hurdle is now over, just wait to see the response from the respondent. 99% certain that they will deny the claim.

[eforegg]

Hope all have had a nice Easter.

 

I have a quick question with regards the respondents 28 day time limit. Under normal circumstances the 28 day time limit for my employer to respond would be today. As there have been 2 bank holidays does that extend the time scale or is it still a strict 28 calendar days? This is of course assuming they haven't applied for an extension.

[installspark]

It is 28 calendar days

[eforegg]

Not quite sure what to make of this.

 

I'm just off the phone to the Employment Tribunals (Scotland). My case has been sent to a chairperson for review and to see whether a default judgment is appropriate, as my ex-employer has not submitted a response. I must admit I never really factored in this eventuality. It doesn't really make any sense to me.

 

I've read up on the potential outcomes and rather than getting ahead of myself, I think it's a matter of wait and see what the chairperson decides. The cynic in me keeps thinking there must be something behind this. Is there any obvious (or not for that matter) reason why an employer would adopt this "tactic"? Is there any benefit to a respondent doing this? You can probably tell I'm a bit bemused and feel there's a game being played out behind the scenes by my ex-employer.

 

It's kind of threw what I had planned to do next. As I've mentioned previously, I have audio recordings (and transcriptions) of the relevant meetings which back up my claim. My ex-employer, as far as I'm aware, does not know I have these. I didn't disclose this on the ET1, as I felt best to hear their response based on their own information and notes and then counter with my own evidence, rather than give them everything up front.

 

There's obviously a chance this will go to a hearing sooner rather than later now and I certainly want to disclose this evidence before then. Can anyone advise the best way to go about this. Can I just write to the tribunal, or would I do this by contacting ACAS? Sorry if I sound a bit green about all this.

 

Thanks

[JonCris]

You will have to wait & see but an undefended adjudication in your favour is good for you because you will still be able to bring a civil claim for personal injury damages above & beyond those awarded by the ET for wrongful dismissal

[eforegg]

Thanks for the reply JonCris. To be honest that's an avenue I've never considered. Rightly or wrongly, because my claim is on the basis of both unfair dismissal and disability discrimination I figured any personal injury remedies could be addressed through the disability discrimination portion, which is ultimately where I feel most wronged. If that makes any sense.

 

As you say though it's really wait and see.

[JonCris]

The DD at the ET claim does not preclude you from making a PI claim. The fact that your employer appears to have damaged you over a prolonged period of time will not be addressed at the ET. It will however influence the decision of the ET makes it decision

[paulgmb]

As JonCris has stated this is generally good news. Tribunals take a dim view of employers/employees not responding and they were probably sounding you out for your view. Unless the company come up with a very good reason for not having submitted in time the chair can rule that no defence can be submitted and so your case would proceed to tribunal very much in your favour.

 

In cases like this its lambs to the slaughter and it puts you in a very strong bargaining position, most employers will want to settle out of court. You should check out (someone on here may be able to help) what the maximum sanction is and look at some figure close to this.

 

Someone I was asked to represent around 5 years ago was in a very similar position. A large company refused him the right to be accompanied at a disciplinary hearing (by me!) and so we lodged a claim. His company failed to respond in time trying to argue that the paperwork from the tribunal went to the wrong office, someone else had been on holiday the usual waffle and the tribunal was having none of it. He settled for about £50 less than the maximum sanction which was either 1 or 2 weeks salary and still works there today!

 

I hope this has been useful and the chair is similarly unimpressed as above!

 

All the best,

 

Paul.

[installspark]

With no response having been received, this is putting you in a very strong position with your claim. ET's look very unfavourably on non responses by the respondent and there is every chance you will get a judgement by default.

 

Please keep us updated with developments

[Allwood]

c00kiemonste - I had similar experience to you but was not dismissed. My employer phoned up for me to come into the company for an informal chat but as I was on crutches with I told her that I would not be able to take public transport and would they pay for a taxi for me. I followed this up in writing to them and got a response stating that they would pay for a taxi there and home again.

 

With great difficulty I got the the store and was met by two people on was brought in for the purpose of interviewing and the other was a man from the store. It turned out to be a Interview/Disciplinary hearing regarding my injury.

I found it very difficult to forecast to them when i would be returning to work and how my medication was helping me, I found the whole experience very harrying indeed.

[JonCris]

Allwodd as a matter of interest can you say if your injury was work related.

 

I ask because the courts tend to take a rather dim view of employers who 1st injur their employees & then lay them off because they can't work

[Allwood]

Hi JonCris - no the initial injury was not work related but I felt pressured to go back to work by the interviews and went back earlier than I should have however they own OHA recommendation that be minor adjustment made for me but this was not complied with. I had another accident at work and had to leave but I was left to make my own way home in agony if it was again I would have insisted that they call an ambulance for me. I was still using a crutch to get to work and I was left to make my own way back home after the accident the mean company would not pay for a taxi for me and I did not have money with me to get a taxi myself. Now this is a very retail store and are always advertising about their food. I am in my sixties and they could not afford a taxi for me. What a mean crowed they are with their staff that are over sixties. The management knows that you will not get other work when you are that age and they take full advantage of it.

[JonCris]

Was you work injury reported & subsequently recorded in their accident book??

[eforegg]

Help! An update. . .bit of a nightmare here. . .received a letter from the Tribunal, and it seems my employer has replied. Faxed across on the last applicable date. Why i was told they hadn't entered a response I dont know, but I certainly wasn't expecting this today!

 

Their solicitors have replied on their behalf and by god it's seems a handful (wonder if everybody in this position feels overwhelmed when they first set eyes on these solicitor responses) I guess they're paid to bamboozle the lay person, in that they have definitely succeeded here.

 

They resist my full claim. They do not admit I was disabled under the terms of the DDA 1995. This isn't really a suprise I guess I had thought it was beyond that point given what I was told on the phone on Tuesday.

 

I need to dissect the details now and I'll post back later.

[installspark]

Chances are that the response was faxed over just before 5pm on the 28th day.

[eforegg]

Thought I'd give a quick update for all that have helped me thus far.

 

Had CMD last week and although nervous beforehand went pretty well. My employer's solicitor wont accept I satisfied the terms of the DDA, even although my ex-employers report from occupational health states "in their opinion I'm covered by the DDA" They want to see the medical reports OH used to prepare their report. Chairperson was none too impressed given in their ET3 they deny my disability. He actually inferred was this a standard tatic to deny everything in the first instance given it appears they haven't looked at the full evidence available.

 

Bottom line is they wanted a further month to investigate further before making a decision, chairperson gave them 14 days from that day so the clock was ticking. The CMD was adjourned at that point and will be reconvened once the solicitor have submitted a decision.

 

The tribunal is pencilled in for July/August so he's already told them he's not going to be doing anything that will jeopordise those dates without good reason.

 

Time will tell.

[JonCris]

Afraid it's an old gag

When you get to a hearing tell the court (or ET) that you have not had time to review all of the evidence...........Do this even though you have never asked for it............It exposes your case to them including any of the arguments you intend to rely.......This gives them an opportunity to either amend their defence or even to refuse to settle........ a recent classical example of this was Heather & Paul's divorce when after allowing Heather to put her case thereby exposing Her arguments Paul withdrew his offer

[eforegg]

JonCris, thanks for the info. As fate would have it, guess what I received today by recorded delivery. . .a letter from my employers solicitor enclosing a copy of a reply to ET. They are asking for a further 2 week extension as it appears the OH doctor is out of the office this week and next.

 

I'm sure they'll be given this extension or else they can moan they never got a chance to review all the evidence however what's particularly galling is they take a full month to complete the ET3, in this deny I was disabled under the terms of DDA (although it transpires the only physical evidence they have seen is an OH report completed from my employer stating in their opinion I was disabled. . .fast forward a month, attend the CMD and they state they haven't seen the neccessary medical reports used to compile the OH report to give a concrete answer. Surely if they doubt the capability of the OH doctor to make an accurate assessment of my condition then there's an issue with my employers OH doctors ability to support my return to work.

 

It's is worth objecting anyway or does that just make me sound unreasonable?

 

I guess at heart it really is a game.

 

P.S. thats my moan over for today.

[JonCris]

How long has this been going on because if they already had plenty of time to request this evidence & haven't up till now I should write to the Chairman of the ET & object to them being granted an extension on the grounds that knowing it existed they have had plenty of time to obtain it.........& the fact that your previous employer agreed with the original finding should be evidence enough as to your disability (res ipsa loquitur) .....Also further delay will prejudice you already the victim of the respondents unreasonable conduct

[eforegg]

I submitted my ET1 on the 26th February 2008. The ET3 was submitted on the 25th March 2008. The CMD was 25th April.

 

During the CMD the chair gave them 2 weeks from that date [25th April]. In his letter outlining the details of the CMD he states the following. . . . .I did however have concerns allowing any significant period of time in this regard, given that it seemed to me that with the occupational health report, the respondents ought properly to have been in a position at the CMD either to confirm that they accepted that the claimant was disabled for the purposes of DDA, or to adhere to their position in line with the ET3 that he was not disabled. Alternatively, in my view, the respondents ought to have been able to state to the CMD that they required time to obtain further medical information, if that was indeed their position.

 

To me it appears he's not unsympathetic to my concerns. In essence they have had since the approx the first week in March to think about getting the medical evidence used to prepare the OH reports. I would have thought in anybodies eyes that would be sufficient my problem is I'm no legal expert and I'm learning as a human being what you should do and what you can do can be vastly different.

[JonCris]

It does appear that he is aware of the issues surrounding the evidence however you must try & ensure that they are granted no further delays by reminding the court that with the greatest respect any further delay will be highly prejudicial to the settlement of your claim