Unfair dismissal

[davietich]

Hi all - i wonder if anyone out there can give me some advice on the following:

My stepdaughter has worked at a local childrens nursery for nearly 4 years now.

Earlier this year she took major depression and has been off work for nearly 7 months.her doctor signed her back on a recommended phased return to work - upon her back to work meeting the directors just told her they had taken legal advice and sacked her. !!!!

She is still under her psychiatrists guidance , has too see him every few months and will be taking medication for the forseeable future.

Are they legally entitled to dismiss someone on health grounds when her doctor signed her back as fit to work.?

Any advice greatly appreciated

d:|

[honeybee13]

Hello there, sorry to hear about the problems.

 

Did they say anything else to your stepdaughter, or is there anything in writing please?

 

My best, HB

[davietich]

Thank you for your reply - this only happened today so are awaiting the termination notice from the workplace . They did say they had taken advice from the care commission?? and for the good of the nursery they were terminating her employment.!!! they totally ignored the doctors letter which stated she was fit to return to work and basically said they can sack her if they like.!!!!!

[davietich]

She does have a contract by the way.

[papasmurf1cx]

What caused her illness? Was this a one off problem or has she had a series of ill health problems in regard to time off? Is there a sickness policy at work and if so did she fall foul of it in some way. Employers can dismiss for capability but they must also follow their own policies. They cannot discriminate either so the circumstances surrounding the dismissal would be relevant.

 

In short I think you need to expand the facts and story so we can better understand.

[davietich]

hi - my stepdaughter was signed off by her doctor at the start of the year and subsequently was referred to a psychiatrist who diagnosed her with major depression - she was off work for 7 months approx. as she had her medication changed three times . she was signed back by her doctor on a phased return recommendation with a covering letter from the doctor which the directors requested.She never got a chance to return to work as she was told she was sacked at the return to work meeting . this has been the only illness she has had in her near 4 years of work other than the very few short spells for flu etc. the managements attitude was very intimidating and has set my stepdaughter back greatly in her recovery as she is devastated and embarrased by it all. we were wondering is there some body we can complain to regarding an appeal.

thank you for your interest.

d:|

[papasmurf1cx]

I doubt that she has any chance now to get the job back. An ET could order it, should she win but normally that is not the route taken. But your last post is more concerning in that there are other periods of illness that may be relevant. Was she ever warned about the amount of sick leave she was taking? Also you need to answer the questions I asked... there are points behind them eg if the cause was related to work, as is very common then there may be action in regard to discrimination but I say again the reasons why she was sick is needed ... we accept she was ill.

[davietich]

she just suffered a major depression out of the blue which was a surprise to us all- she had a history with mild depression before she got her current job which her employers were aware off - she had no warnings of any sort from management regarding previous sickness as it amounted to only a couple of weeks over the four years . she was a very conscientious worker who always worked extra hours during staff shortages and ran the nursery when the manager was on holidays - her work commitments were never questioned by the management in any respect - she got nothing but praise from the parents and management alike - they just seemed to have picked on her for this one off illness which she had no control over. we will check to see if she is covered by the disability act as her consultant is absolutely lived over her treatment and is getting back to us with more info tomorrow. her workplace are notorious for sacking people on a whim but we are going to take this further if we can as she was the longest serving member left on the staff and as i said earlier basically ran the nursery on occasions. she has never had any warnings regarding her work or sickness in the four years up to this point in time when she was told --YOUR SACKED!!!

REGARDS D:|

[Sidewinder]

This all seems incredibly harsh, and I am presuming that the authorities are acting under the guise of child protection. Naturally you won't want to go into detail, but would they have any reason to suspect that your daughter's condition might result in harm to the children or herself?

 

Unfortunately there seems to be an absolute exception from normal rules when it comes to working with vulnerable people. Whilst it is completely understandable that one should not seek to put chiildren or vulnerable adults in harm's way, an awful lot of people are denied working with these groups due to seemingly miniscule concerns, unsubstantiated allegations and there seems little that the individual can do about it.

 

You mention that they have consulted the Care Commission, so I presume that this falls under Scottish jurisdiction? They should only be consulted and express an opinion if there is a demonstrable risk of harm.

 

I fear that your daughter may have to seek legal advice and fight this decision as far as possible. In the first instance it may be worth a SAR to try and get hold of any notes or documents relating to the decision that she should be dismissed, and of course she must appeal the decision. There would seem to be a discrimination angle here, which may or may not be overridden by concerns over child welfare.

[davietich]

Thank you all for your help - are going to citizens advice asap

[papasmurf1cx]

Under The Equality Act 2010 an illness or injury is covered as a disability if it has lasted at least 12 months, likely to last 12 months or more or in the case of intermittent bouts of illness (such as depression) there is a history and likelihood of it reoccurring. It seems as she had "mild" bouts of depression and now a major attack of it that she probably would be covered under the act. One would need to prove this for a court / tribunal and that would mean a medico legal report. In addition the injury or illness must affect the activities of daily living eg concentration toileting mobility etc. I would have thought that the effects of the illness would also be covered.

 

You could try and submit a grievance to the employer as many of the things in law are time based you don't have much time to get things into action. You may want to take a case out alleging discrimination, it is inconceivable that an employer would sack an employee for breaking a leg for example so to do so for a mental illness shows a complete disregard for the nature of what mental illness is about and in short pure discrimination. The action seems to have put her into a relapse (post //6) so there is an element of causing personal injury to her. Compensation in discrimination cases has no limits (that is not to say any would not be assessed as limitless!!!).

 

The childcare aspect may very well be valid but there seems to be no independent assessment to back up this and the action taken has got no basis in hard evidence to show that she is a risk, in fact the evidence from the consultant is that she was fit for working with children otherwise he would not have signed her fit. No doubt there is opposing arguments going on here and you probably will need a lawyer to represent you.

 

Has she legal protection insurance (home contents policies have them) for employment disputes, if she has I would be getting on to them asap. Try a no win no fee lawyer also if you can find one, although you may have difficulties there.

[RachelMD]

To add to what Papasmurf said above, if nothing else it might well constitute perception discrimination under the EA 2010.

She needn't have to have a serious impairment as defined under the former DDA, if she could demonstrate that she was dismissed because her employer perceived her to have a disability.

 

I'd suggest getting an initial consultation with a few solicitors who specialise in employment law/EA law.

I say a few as I believe it's best to shop around, some solicitors can be more enthusiastic than others!

 

The significant period of time she was absent from work for would be my concern with your stepdaughters situation and her prospect of bringing a UD/EA claim.

7 months is a mighty long time. All other things being equal, an employer can lawfully dismiss an employee for being absent.

That's why I'd suggest speaking to a solicitor.

[davietich]

The reason she was off work for 7 months was because her consultant changed her meds several times until he found one that actually worked. SHE has been told she will be on these meds and under the guidance of the psychiatrist for another 18 months at least . I wonder if this would qualify under the Equality act 2010.??

Anyone think union action (I have just enrolled her )or ACAS is the best route to take.

again thank you all for your support

d:|

[papasmurf1cx]

Yes I think she would be covered.

 

Union won't take action in retrospect. (they hardly take action to existing members to be honest.) Personlly I think that was a waste of your money.

 

Best route..... solicitor and Tribunal. Employers don't respect anything other than the bottom line of their profit accounts. Hit them where it hurts ie the bank account.

[honeybee13]

Hello there.

 

Papasmurf has a point. Also, some unions won't represent you until after a 'lead in' period of three months or so.

 

I don't know if this is a case where your legal protection insurance [assuming you have one with your household policy] would help.

 

What do you think, guys?

 

My best, HB

[RachelMD]

It probably would, yes.

 

I very much doubt that a union would assist her in a matter that came about before she joined, rather like insuring your car after you've crashed.

ACAS usually become involved when litigation commences, in an effort to mediate and broker a settlement.

 

Speak to solicitors.

[RachelMD]

LPI, yes. Good thinking, The Bee.

[papasmurf1cx]

HB.. said as much at post 11.

[RachelMD]

HB.. said as much at post 11.

But you didn't say it as nicely as she did.

[honeybee13]

Sorry papa, I don't think we said exactly the same thing, but I think we're about on the same page . Hi Rachel.

 

HB x