Dismissed on ill health grounds...

[elche]

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.

[elche]

[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

[elche]

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.

[elche]

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.

[elche]

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.

[elche]

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

[elche]

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 ...."

[elche]

Totally agree with you but sadly not many follow this.

 

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

[elche]

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?

[elche]

 

Just sent off an email to HR regarding audit trail of any discussions that took place regarding alternatives to dismissal :

 

Lets just hope they are not mean enough to forge a load of minuted discussions .... that just wouldn't be cricket now would it!

 

I don't really think it can do any harm, to be honest they would be idiots if they weren't already planning their defence, cos they know you will probably claim after all what does a dimissed employee have to lose if he/she does claim?

 

[elche]

Hi

1) can they just sack me, do they have to offer me any payment or can they just terminate my employment.

 

1) An employer can do whatever they want - whether their actions comply with employment law is another question. The follwoing from an earlier post of mine:

 

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