Medical Capability Dismissal

[installspark]

I agree with JonChris, you do need to write to the Chairman stating your objection to the respondent's request to be allowed further time to compile evidence on the ground that the respondent would have, or should have been aware from the initial claim that this evidence would have been required.

 

It would appear that this is a blatant attempt by the respondent to circumvent the 2 week time period that was ordered at the CMD so that they may get the 4 week period that they wanted.

[JonCris]

The truth of the matter will be that behind the scenes the lawyers are simply waiting for their client to respond to their advices who's probably taken it into his head to be bloody minded because he doesn't like it.........The doctor not being unavailable, allegedly (I would check if you haven't already) will have played into their hands

[eforegg]

Thank you both for the advice, I will definitely be objecting (drafting letter as we speak) I've asked a friend who still works there to make some discrete enquiries re OH's availability as well.

[eforegg]

I wondered if anyone with some experience of these matters to take a quick look over the wording of my objection letter. it's the first one I've written and maybe I've been watching too much LA Law.

 

MY DRAFT

I write further to the respondent’s letter, dated the 2nd May 2008, seeking a 2 week extension to comply with the Tribunal’s directive, to object and to respectfully ask the Tribunal to use it powers to deny this extension.

 

I would like to respectfully remind the Tribunal that the respondent would have and should have been aware from the initial claim, dated 24th February 2008, that further medical evidence would be necessary to support their stance in the ET3. This stance, contrary to the respondents own occupational health report, dated 21st August 2008, that in their view the claimant is not disabled for the purposes of the DDA. From this occupational health report, it should be clear that further specialist medical reports were asked for. Knowing that medical reports already existed the respondent has had plenty of time to obtain them. The fact they have not sought to do so before now should not be a valid reason to extend any further, the additional time they have already been granted.

 

To grant a further extension would be to further penalise the claimant who is only in this position due to the respondent’s unreasonable behaviour.

Edited May 7, 2008 by eforegg

[JonCris]

May I suggest, that after 1st pointing out the beginning your the claimant, you write it again in the 1st person such as 'I' 'me' etc rather than refer to yourself in the 3rd person

 

If you refer to the 'claimant' when you mean you it makes it look like you have received legal advice (or not to have written it) which may cause the ET to be less forgiving of any mistakes you might make

 

You should remember that you are a 'litigant in person' without any legal training or qualification & should act accordingly........don't, as many do, get caught up in the flowery language of legalese

[eforegg]

JonCris, thanks for the words of wisdom. I've a tendency to trip myself up when trying to follow conventions I'm not at ease with. I'll definitely rewrite from the first person perspective.

[paulgmb]

Rather than "Ask" I would suggest that you say as the claimant you "Object" which is a bit stronger. That way they have to take your opinion into account. Just a small point but they should consider your opinion before making any consideration on extensions.

[eforegg]

I guess I'm not that suprised, received a letter today from the ET to say they have granted the extension. I guess I just wait the 2 weeks out now.

 

Thanks all, for your help over the past week.

[installspark]

That's a shame, please keep us updated

[eforegg]

A little update, which in my eyes is getting out of hand.

 

Previously I mentioned the respondent was granted a 2 week extension (expires on 23/5) to obtain medical reports which occupational health (OH) had used in preparing a report stating in their opinion I was covered under terms of DDA. They have now come back seeking a further 2 week extension as after approaching the OH doctor, she has told them she's not prepared to release the reports without my consent. I assume this is to comply with data protection.

 

Surely a firm of solicitors and especially one which advertises themselves as specialists in employment law should have known this would have been needed prior to this. This strikes me as an obvious attempt to drag things on and on. I want to object strongly to this but dont want to appear as if I'm objecting to everything. Is it wise to restate my original objection and why this "lack of foresight" should not be used as an excuse for an extension?

 

I'm raging as I write this so sorry if it comes across like a rant. As usual would be happy to hear anyones opinion on this.

Edited May 20, 2008 by eforegg

[JonCris]

Of course they did. No lawyer thinks they can get your medical records WITHOUT a 'Form of Authority' signed by you. So obvious is it that I assumed you had already given it.

 

To even bother writing to the Dr without it is a complete & utter waste of time

 

Did they include a pre printed form which when signed by you grants them permission to have access to your medical report? If not then they are again playing the stalling game. (watch out they could be using the delays to film you)

 

Do 2 things prepare your own 'Form of Authority' & send it direct to the Dr with a copy to the solicitors explaining you have sent it direct to the Dr & 2nd write to the ET telling what's happened & asking (more as a statement than a question) why the respondents solicitors didn't request such permission at the outset

 

It may not cause the ET to react but it certainly will add fuel to the fire if the solicitor asks for even more time or attempts in anyway to stall matters further

[eforegg]

With this letter asking for another extension they have included an authority for me to sign. I'll do as you suggest.

 

I'm sure I shouldn't put this in my objection however it seems very ironic that this all stems from my employers solicitor not willing to accept one professionals opinion (that I'm covered under DDA), yet they've shown themselves (albeit it's a tactic they are using) to be less than professional aware in their conduct.

[JonCris]

In that case ask, as you now know this document is a necessity, why they didn't ask for it much sooner. Also still send a signed copy direct to the Dr telling the solicitor your doing it to save them time

 

CC the letter to the ET

[eforegg]

I've outlined below my initial draft for the ET if anybody would like to comment please feel free.

 

I write with reference to the above case and specifically with regards the letter from the respondent, dated the 20th May 2008. I would like to respectfully register my objection to yet another extension and to what in essence amounts to a further delay in the proceedings.

 

I would like to ask why the respondent didn't request such permission from me at the outset or even at the CMD? This is especially disappointing given their position, as stated in the ET3, is contrary to the available occupational health reports prepared by the respondents own occupational health provider. It should have been reasonable to assume further medical information would be neccessary to support this contrary stance and consequently as experienced practioners in law they should have known to obtain this medical information, my consent would be required.

 

To grant a further extension would be to further penalise myself who is only in this position due to the respondent’s previous unreasonable behaviour.

 

Pending the outcome of this objection I have today (21st May) forwarded, by recorded delivery the signed form of authority, direct to the occupational health doctor to save the respondent time.

 

 

I've also read the authority mandate they've worded and it seems very vague and all encompassing. I'm perhaps being paranoid but the wording does make me nervous. The following is the exact wording minus the names and addresses of course. Is this standard wording or am I right to feel a touch paranoid? Again any thoughts would be appreciated.

 

. . . . . authorise you to disclose all medical records, GP reports, consultant or other specialist reports and all correspondence relating to me which you hold for me to. . . . .

Edited May 21, 2008 by eforegg

[JonCris]

Are they claiming they have absolutley none of these already??

[eforegg]

They are. They say they only have the occupational health report stating in their [OH] opinion I am covered under DDA. They have no other medical information at all, yet have had since my submission 24th February 2008 to obtain this.

 

Even though I recognise they would like this information to me it seems wrong this far down the line to have done nothing to obtain it.

[JonCris]

Of course it's wrong & if even it wasn't deliberate it certainly shows considerable incompetence

[eforegg]

I'm assuming it's wise in my letter not to state or infer incompetence?

[JonCris]

Don't state incompetence More a question of you can't understand why they didn't sort it out sooner? & leave it at that

[davethorp]

Subbing as I've recently been dismissed due to medical capability

[JonCris]

Was your medical condition caused or exacerbated by your employment??

[ScarletPimpernel]

Also subbing as I think my employers are about to do this to me. My condition is the result of things that happened in a previous job, but was diagnosed during my current employment, and has been exacerbated by it.

[JonCris]

Scarlet

Did you complete any kind of medical questioner when you applied for the job. If so did you admit to your condition

 

If not when was your current employer made aware of your condition & what steps, if any, did they take to alleviate your working situation

 

& are you in a union?

[ScarletPimpernel]

I completed a questionnaire, and had a medical before starting this job. However, the condition was not diagnosed until I'd been doing it for two years. The employer's reaction at the time was to suspend me, and then move me against medical advice. I was off for 3 months, and they have all the sick notes and two medical reports from that time. Since then I've had several medicals, and my condition has been disclosed on each occasion. In addition, I saw a consultant at the company's request specifically regarding the condition.

 

A few months ago I suffered a repeat of some symptoms; as a result of this, and because I think my line manager is prejudiced towards me, I asked for reasonable adjustments to be made under the DDA.

 

The company's response was to claim that they were unaware of my condition! According to them, they have no record of having sent me to the consultant (do they really think records aren't kept?). They are now sending me to see another consultant with a view to assessing capability; after this, they say they will look at any adjustments. All they've done so far is keep me at arm's length. However, another manager has been indiscreet with colleagues, and has made comments that indicate to me that the company want to get rid of me.

 

I'm not in a union - I was once, but they proved utterly useless when I was first diagnosed, so I binned them.

Edited May 22, 2008 by ScarletPimpernel

[davethorp]

In my case my condition is depression and when I first went off sick, whilst work and the amount of workload they kept piling on me did not help, there were other factors as well