Dismissed for incapacity.

[Phepia]

Hi people,

I have just submitted a appeal to my ex employers dismissing me on incapacity.

1) I asked for a health and safety review to make sure I was still ok to work on. I was sent for a occupational health review instead (these are different? ) Work knew from day one I was disabled but refused to believe it.

 

2) They stopped me from working on medication I was taking prior to a operation based on the occupational health physician report.This was decided on medication I was taking, not on my medical problem. I have been taking the same medication with my immediate supervisors knowledge (they had not told higher authorities, who found out and then stopped me working). The medication can cause drowsiness and although it did not affect me at the time of taking it I was not allowed to work. I did not receive 10 days wages due to this (over £600).

 

3) I had a operation 10 days after this suspension. All was ok with company until 12 weeks after the operation. I was asked to go to a fitness for work medical with the same person as in point 1. I was not fit according to my GP and myself so I tried to cancel it. I was told I had to attend and I did. The person claimed I was fit and as a result of the report he claimed I was being factious and me SSP was stopped. (HMRC later told them to recommence after a investigation) I was still on sick, and submitting notes all this time.

 

4) I had to fight to get them to write to my GP and surgeons to prove I was telling the truth. They only wrote to 2/3 people I signed medical access forms for. Still on sick and 3rd surgeon decided to operate on me again as other operation in point 3 did not work.

 

5) They decided that unless I was back to work ASAP after the operation I would be retired on incapacity grounds. (Even though they still said they believed the person claiming I was factious) They said that as they did not beleive my sickness that they did not need to retrain me within company.

 

6) A partial surgery was performed in April 13, this is still causing me pain, and not full movement to my affected area but right now I would claim a 60% improvement on presurgery.

 

7) Fired on incapacity grounds. The HR person basically looked on their jobs website on the date of the meeting and said no to the jobs that he thought I could not do. This was all the vacancies he looked at, and no offer on retraining within the company.

I had even gave them a vacancy I could do within the company that would require little training, which was refused.

 

They have not followed their employment manual regarding procedure, basically did not believe my disability. Then when it suited them fired me.

I realize they do not have to keep me employed, but surely following procedure is expected. They will only pay me for 3 weeks severance pay. But in a few days I will have been there 5 years.

I am awaiting my appeal response. I was told in the letter firing me that it would be held by someone who has looked at a grievance I held with the company. I have told them no to this, so I am unsure if they will upheld the appeal or just throw it in the bin.

Sorry for the long post but any help and advice would be welcome.

[Emmzzi]

how long were you off work altogether?

 

I am afraid you do not get to decide who hears the appeal. Just because you did not agree with their decision on a grievance, it does not give you a right of veto.

[Phepia]

Hi there, I still am sick. My date started 15 February 2012.

 

Just wondering why I was gave different advice from Acas over who holds the grievance. It was on their advice that I asked for this.

Thank you for responding.

[Emmzzi]

so you have been off work for 15 months? and you have no date you think you will be fit to return to duties?

 

I have to be honest, this is a tough case. If you appeal I fully expect they will then go through due process, and the final outcome will be the same.

 

What result are you looking for please?

[Phepia]

Seeing as to they have known from the start of the disability, and they seem to think it is ok to ignore it, Then when I couldn't do the job they first said I was lying, then when it suited them suddenly I am unfit. Especially as they chose to not believe me to start with, and accused me of lying. I believe disability has a part to play. Surely to say in one report I am lyings and fit to work, then the next report saying I am now unfit (nothing medically changed between the 2) is something I could use as well?

They could have easily retrained me within the company, with little cost to the company as it was a job I could do already.

I also feel that they got rid of me also for 2 reasons- 1) I filed a ET1 because they refused to pay me 3 lots of money I was owed ( sickness money and two lots of holiday payments) 2) I was several days short of 5 years there so it would save them money by firing when they did, a summ of over £300.

I also suspect that I was got rid of as I was being paid more than people who had been there less time. They had brought in a lower wage for the new starters. Its a easy way to save money, but I can't prove that.

[Phepia]

Oh and I forgot to add I asked on 3 occasions for me to come back on light duties and I was refused. Not sure if this has any use.

[Emmzzi]

I'm going to keep coming back to, you have been off work for 15 months with no firm date you can resume your duties.

 

And

 

What result are you looking for?

[Phepia]

I'm going to keep coming back to, you have been off work for 15 months with no firm date you can resume your duties.

 

And

 

What result are you looking for?

 

Sorry, I thought I had answered you. I am unable to do the job I was taken on for. I asked on 3 occasions whilst off sick to be retrained. I can not do the job as to do the job would make my condition worse. I am able to return in some capacity but not for the job I am employed for.

I am a bus driver and I have injuries to both shoulders with arthritis diagnosed in one, suspected in other(undergoing tests right now) I can not drive, and have not done so for over a year. For me to drive again right now would mean invalid insurance, and DVLA would prosecute. Probably police too as I am unable to move my shoulders properly.

 

I would like them to retrain me within the company, to a job I can do. It would be little cost to them, and they would only look at jobs that they have vacancies for, not for one that did not have a open vacancy at the day I had the welfare meeting.

 

I hope that answers your questions.

[Emmzzi]

Thanks.

 

Now, have you put your request for retraining in writing, stating you have a disability. And how many employees do they have? They'd need to think about it if they had thousands, but if they only have a couple of hundred, that may not be reasonable.

[Phepia]

I have put it in writing yes, several times. Also verbal.

They have 4 depot's(in the West Midlands), mine have got 70 in it approx. One is very much smaller. The other two are a little larger- maybe 200/250 people in each?

So I would say at least 700 altogether in the West Midlands area, they have garages in London, Wales and in the North East. Possibly more, but that is just the garages I am aware of.

[Phepia]

Edit: sorry double post

[Emmzzi]

And are you prepared to move to another site? I am not sure retraining where there are only 70 people is that reasonable an adjustment to ask for.

[Phepia]

Yes one of the sites is easier to get to now I am unable to drive. 2 are within the West Mids border, 2 are in Worcs (including one I was based at)

[Emmzzi]

Again, write and make them aware of that. I am still not sure it falls under "reasonable" for the size of company but you have little to lose.

[Phepia]

I sent the letter of appeal off already, Would you suggest sending this request separately or in letter form if/when I am granted my appeal hearing please?

Thank you for the advice btw

[Emmzzi]

I'd just make sure they aree aware if it wasn't in your appeal.

 

I must be honest and say I don't think you have a high chance, and they are not acting unreasonabley. I say this not to be unkind, but to enable you to prepare for the worst. I would probably be seeking the help of the disability advice services at the job centre.

[Phepia]

YEs to be honest I do not think I will be successful either.

I want to be treated correctly though, and if they have done wrong then I want them punished. I didn't even know the job centre had disability advisors. I shall certainly ask and see if I can get some advice off them regarding this, it certainly won't hurt trying to find out anyway.

[ericsbrother]

You said they were retiring you, is there an occupational pension scheme? if so then you need to find out waht the rules are for ill-health retirement and go for that if your condition is permanent.

An employer can dismiss you on capability grounds and doesnt have to offer you another role in the company but would be wise to. You say theat you told them about your disability when you were taken on, did you undergo a medical at the time (or pass on permission to see medical notes)? If the answer is yes then you have grounds to make a claim for disability discrimination, you would need to speak to the equalities commission in this regard. It wont force an employer to redeploy you but you could very well make them think about how they have managed your illness and disability (possible claim for compensation for discrimination)

[Phepia]

There is no pension facilities at all within the company sadly. Osteoarthritis to my knowledge is a permanent illness but I intend to at least try and do some kind of work asap, I have a mortgage to fund.

I did not have to have a medical before starting work, but I told the person who interviewed me, who wrote it down. They still offered me the job. The whole time I was employed I was fighting them over the long shifts, but my immediate supervisor did not believe I was disabled, and told me that it was down to me to prove it. I asked then for a health and safety assessment to see if I was still safe to drive, yet was gave a occupational health assessment medical with the works doctor. To my knowledge it is not the same thing.

He suspended me for the medication I was taking without any proof I was taking it- just my word. At no point has a drugs test been done. So I was suspended purely on what I had said. Their handbook says I should have been tested as does my sense of reasoning. The doctor claims there was nothing wrong with my shoulders in his eyes, yet I had been diagnosed with Osteoarthritis a month earlier, the medical was done in February,diagnosis in January.(I however did not know of this diagnosis till the June that I had this as I had asked my GP to be tested for it,who seemed surprised I had not been told at that point)

The only time did they ask for notes was at a grievance meeting I had asked for in October last year. I gave permission for them to contact 3 people,but they only wrote to two. They did not write to the specialist who had diagnosed my arthritis.

I am at present waiting for them to respond to my 12 point appeal on their failings. Not following procedure, not treating me equally, ignoring my disability amongst others. I gave them 7 working days to answer me. This brings it to the 21/06/13. If no response off them by the 24/06/13 then I intend to file a ET1.