Capability due to ill health

[northernstar074]

Hi

 

I have been suffering with depression for a number of years due to personal problems and also work problems. I went off sick from work on Jan 21st after being verbally abused by my section leader in front of other colleagues.

 

I self cert'd myself for the 1st week and then was signed off by my GP. I attended a meeting at work with occupational health and then a further meeting was arranged for Feb 14th. Failure to attend would result in an investigation into my capability to do my job. As it turned out this is what the meeting on Feb 14th was about.

 

Having been absent for 14 weeks out of the last 52, mainly due to work problems, I was told I was not fit to do my job and I was being dismissed on the grounds of capability and they decided my ill health was a reason to sack me.

 

Can they do this ? I have no warnings etc on my file.

 

Thanks Anthony

[becky2585]

How long have you worked there?

[northernstar074]

5 years

[becky2585]

Then this could be an unfair dismissal.

 

They can dismiss you on capability grounds, IF they go through the correct procedure and give you the opportunity to improve your attendance levels. It would also be good practice to request a medical report for a definitive prognosis of your condition. Taking the decision to dismiss you without any medical evidence would almost certainly be unfair!

 

Did they give you the right of appeal against the dismissal? If so, ensure that you appeal the decision. I would recommend taking legal advice and seeing if you have any legal expenses insurance on your home contents insurance policy, as many people are covered without knowing it.

[northernstar074]

I assumed they would have had to go through the correct procedure and give me a chance to remedy my absence but I was dismissed instead.

 

I have been in contact with the GMB and they have advised that an appeal would be pointless and cause me more stress as I have breached company procedure by not correctly notifying them of my absence but this has been due to the depression ie not wanting to answer the phone, go out or speak to people on the phone.

 

I assume that the time allowed to appeal has now passed as I was dismissed on Feb 14th.

[becky2585]

Your union rep is a cretin.

 

You risk reducing any potential compensation by 25% if you don't appeal, so it's imperative you do so. Even if a little out of time, submit the appeal. They don't have to deal with it, but at least then you've fulfilled your employee obligations under the acas code of practice.

[northernstar074]

I did feel a little abandoned by the union when they told me not to bother appealing. I accept that I have a couple of breaches of the company policy by not informing them of my absence in the way that the company procedure laid down but the point of the appeal is that the company have just said as I have been off for 14 weeks out of the last 52 then I am incapable of doing my job and I wpuld be dismissed with immediate effect. I did look at the acas procedure on capability on the grounds of ill health and they certainly haven't followed them also their own occupational health nurse said I was fit for work.

[suziebear67]

hi you should report ur work related ilness and abuse to dwp put a claim in for industrial injuries benefit i did it took a while but i was awarded some benefit, its just not for the money it proves to ur self that the other person was wrong if that makes sence. Good luck

[northernstar074]

Hi

An update to my situation. I had my appeal heard yesterday and they admitted that procedure and policy wasn't followed correctly and I should be reinstated with immediate effect.

 

The problem is it has been made clear to me that they dont want me to work there and have been forced legally to reinstate me.

I have been reinstated pending the investigation into my attendance etc and it will probably end in the same result with me being dismissed again.

During the appeal hearing the union offered a compromise agreement whereby I left and the solicitors sorted out a compensation payment for me. The Store manager agreed this was the best way forward but he couldn't refer it to head office as the correct procedure leading to my dismissal hadn't been followed.

 

The questions I have are:

If I go back to work tomorrow can they restart the disciplinary / capability process and dismiss for the same 'offence' twice ?

If I go back to work does that erase any rights I have for claiming unfair dismissal ?

 

Thanks in advance

Anthony

[assisted blonde]

Yes I think they can as the original dismissal was wrong because correct procedure hadnt been followed, on the grounds of capability they probably have a case as 14 weeks out of 52 is 25% which is quite a while, not sure if you can now claim unfair dismissal as you have been reinstated so you are not dismissed.