Dismissed for gross misconduct - advice appreciated

[casper71]

Hi, following a bout of sickness I have been dismissed for gross misconduct. I have only been employed for 10 months and they have said that due to the late submission of doctors fit notes I am in breach of company procedures and as such they construe this to be gross misconduct. I was absent due to arthritis and did have sick notes covering me for the duration of the sickness, however there were delays (days not weeks) due to me being unable to secure an appointment to get the continuation fit notes. I did state during the disciplinary meeting that this had never been flagged as an issue, I maintained contact with my employer and also received 2 home visits and at no time was this raised as a cause for concern. I have been advised that I could go down the route of "Failure to make reasonable adjustments" under the Disability and Equality act 2010, the bone of contention here is that they have not sacked me because of a capability issue (they have stated in their letter that they are more than happy with my performance) they have sacked me for breach of sickness reporting procedures. Seems like they have got me with a technicality and would appreciate advice as to whether I could indeed go down the reasonable adjustments route??

Many thanks.

[Bigredbus]

Hi,

 

(a) You do not have the requisite year service to secure statutory rights... however,

(b) If you were to go down the route of 'reasonable adjustement', it would mean that you have a disability and that you informed your employer at the onset of your employment about that disability...

[casper71]

Thanks for the response Bigredbus, they were aware of my condition - because of the "flare up" and subsequent sickness absence due to this, I had mentioned that It would be beneficial if I moved to the ground floor (as office was on the 3rd and no lifts) - this was due to be discussed along with any other adjustments upon my return to work, but since that conversation they decided to go down the route of gross misconduct. Just not sure how to instigate the reasonable adjustments argument - I feel they have went down this route as they knew I would have no statutory rights.

[Bigredbus]

Ok,

 

Did you employer knew of a disability or of a medical condition?

 

And if yes to a disability was it documented (ie. medical questionnaire attached to your application form)?

[casper71]

Yes, employer received all of this information at application stage. Provided them with my Consultant's details in order for them to obtain a medical report from him. Also supplied GP details.

[Bigredbus]

Ok,

 

Now... how late were your medical notes transmitted?

 

and...

 

What is the company policy in terms of medical notes?

[becky2585]

Hi there

 

Unfortunately, I actually don't think you have much chance of winning this one. Firstly, you'd have to show that your arthritis significantly impacted you on a daily basis to prove you were disabled.

 

Secondly, what reasonable adjustment are you proposing here? You hadnt returned to work so the third floor issue may be irrelevant. The disciplinary issue is not disability related, its a failure to follow company procedures. It wouldn't be a "reasonable adjustment" to allow you to submit your sick notes late, as this is not related to your arthritis and there probably isn't any disability related reason that you couldn't have correctly followed the procedures.

 

I think this would be a very tough one to prove, and unfortunately as you don't have the requisite length of service for a standard unfair dismissal claim, it may be one to chalk down to experience!

[papasmurf1cx]

Hi there

 

Unfortunately, I actually don't think you have much chance of winning this one. Firstly, you'd have to show that your arthritis significantly impacted you on a daily basis to prove you were disabled.

 

Secondly, what reasonable adjustment are you proposing here? You hadnt returned to work so the third floor issue may be irrelevant. The disciplinary issue is not disability related, its a failure to follow company procedures. It wouldn't be a "reasonable adjustment" to allow you to submit your sick notes late, as this is not related to your arthritis and there probably isn't any disability related reason that you couldn't have correctly followed the procedures.

 

I think this would be a very tough one to prove, and unfortunately as you don't have the requisite length of service for a standard unfair dismissal claim, it may be one to chalk down to experience!

 

I disagree. The fit notes were supplied but not on time, this was not the fault of the OP. I think that as long as there was continuity from the GP to cover the sickness then the minor delay in getting them to the employer did not warrant the sanction imposed. Put on top of that that the employer knew of the issue of the disability and was to discuss the issue of Reasonable Adjustments on the return of the OP to work and the time (2 months to the 12month time where rights are accrued) of the decision all show that they were searching for some sort of excuse to get rid of a problem member of staff. The P's work is and was never an issue. I think a ET could assume that an act of discrimination occured and indeed the dismissal could be an act of victimisation.

 

Surely it all revolves around whether a minor breach in a admin matter amounted to Gross Misconduct. To my mind it does not. I think it is worth putting in a grievance after the event alleging Discrimination and Victimisation and also to issue a ET1 for discrimination.

 

Have you Legal Protection Insurance? They are attached to home contents policies, if you do you may be able to fight this and if not you could issue proceedings if you have an ability and want to fight it. Of course you could just move on as becky says.

[Rideout]

Another disgusting practice by a corporation. I'm unsure weather it should of been Gross misconduct for such stated trivial matters. Are you in or your family in any Union?

[becky2585]

The problem is that whether it's a gross misconduct offence or not, with under 12 months service it actually doesn't matter.

 

Marie, whilst I do see that the OP was most likely dismissed for an immoral reason, I don't see that it is going to be easy to prove. It technically was the fault of the OP that the fit notes were not provided in time - its always possible to secure one fit note whilst securing an appointment to obtain the next. Therefore, a breach of the company procedures is absolutely a fair reason to dismiss in the circumstances. I would agree with you if the OP had over 12 months service, but this isn't the case.

 

The reasonable adjustment provisions only kick in upon a return to work and if the adjustment is likely to eliminate the disadvantage. I also have arthritis (and I'm only 27) so its a condition I'm familiar with. I am lucky not to be disabled by it, though, at least yet!

 

A grievance is the best way forward if you believe you have been wronged. You need a 51% chance of succeeding in your claim to obtain legal expenses insurance, but you could always explore the possibility.

[mariefab]

When were you dismissed?

If it was within the last week or so you have nothing to lose by appealing the decision to dismiss you

 

Have you been supplied with the Company's documented Sickness and Disciplinary procedures?

If so, do either of these procedures state that failure to submit continuous fit notes is considered to be gross misconduct?

Do you know whether it's normal practice at this Company to dismiss employees for submitting fit notes late?

Did your fit notes indicate that adjustments could facilitate your return to work?

 

In what circumstances did the 'conversation' about working on the ground floor (reasonable adjustment) take place?

Was it during a phone call/ home visit/ meeting at work?

When did it take place?

Were there any potential witnesses?

Do you have anything in writing confirming what was discussed?

 

(I have rheumatoid arthritis too. Maybe we should start a club lol.)

[Aicha]

If it's any help i am currently going through something similar. Although our stories are different i have as you have mentioned recently been "dismissed" from a company.

 

I also have a multitude of medical conditions which i informed them about at interview stage (including osteo and rheumatoid arthritis). We had a new manager start last November and i was constantly "victimized" by her about my medical conditions on a daily basis and there were several other issues.

 

After we broke up for Christmas i became very ill. I missed about 4 days when we were due to go back to work as i was still ill.(my husband gave them sick notes) i was on the phone constantly keeping them informed about my progress. I was dismissed before i got a chance to return to work.

 

Are you claiming any benefits? I have had to start claiming JSA and contacted my local "Legal Community Advice" center who put me in touch with a lawyer. After submitting all proof/requested documents i have been told i am entitled to Legal Aid as i do not have any LEI. Maybe you could do that and explain your situation. If they feel you have a case they will let you know. Regarding the grounds for "discrimination" there is a 3 month time limit.

 

My lawyer can help with several things but cannot help to take it to the Tribunal stage so my lawyer and Acas are working in conjunction with each other.

 

There are too many companies in this country who think they are a law unto themselves. It is of course very stressful and when Acas spoke to my ex boss a few days ago about me not receiving my final wage, wage slip and p45 he lied to her about my performance at work even although i was the top achiever. When i told my lawyer what he had said she told me he was just trying to "scare me".

 

If you feel like taking it further i would suggest calling your local legal community advice center who should then put you in touch with a lawyer. The lawyer will then tell you if he/she think you have a case

 

I hope this helps.