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Work trying to get rid of me after knee op. *Settled Out Of Tribunal*

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Horler v Chief Constable of South Wales Police is an interesting ET case. Not binding but is being referred to at Tribunals as very good guidance.


I am fighting it all the way :-x

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I explained at my meeting 'pre-dismissal' that I'd like to stay within the company as the pension company has a deal where if you have to move jobs, they'd make up the difference on wage if it was a lower rate. I asked to be moved to two jobs, which we all agreed seemed within the remit of Occupational Healths requirements ,but once again they swung in and said 'no'. So basically dismissed on medical grounds. The union guy said I '...should be happy I've had so much time off' To which I said '..if they'd said there would be no hope of a return twelve months ago, I could have made better provision for my further,rather than being medically dismissed at the point of return' I also have the 'medically dismissed' black mark against me for future employ. This will definitely impede my chances of getting a decent job. Also, why would the pension company make provision for me over such a length of time if the company had no intention of redeploying/re-employing me?

 

I've lodged an appeal ,which will be heard in a weeks time. We both think (me and the union guy) that they've not given me a fair crack of the whip at my old role. Even though the consultant has written to my employer basically saying there's nothing wrong with me. I kind of feel as though all trust has been broken between me and the employer.

 

 

They basically feel as the role will be too demanding for my knee. Which is odd ,as they have guys 20 years my senior doing the same role with dodgy knees. So much so,they provided knee guards for when they have to bend down.

 

Thanks for the link, I've read it with gusto!

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I explained at my meeting 'pre-dismissal' that I'd like to stay within the company as the pension company has a deal where if you have to move jobs, they'd make up the difference on wage if it was a lower rate. I asked to be moved to two jobs, which we all agreed seemed within the remit of Occupational Healths requirements ,but once again they swung in and said 'no'. So basically dismissed on medical grounds. The union guy said I '...should be happy I've had so much time off' To which I said '..if they'd said there would be no hope of a return twelve months ago, I could have made better provision for my further,rather than being medically dismissed at the point of return' I also have the 'medically dismissed' black mark against me for future employ. This will definitely impede my chances of getting a decent job. Also, why would the pension company make provision for me over such a length of time if the company had no intention of redeploying/re-employing me?

 

 

 

I've lodged an appeal ,which will be heard in a weeks time. We both think (me and the union guy) that they've not given me a fair crack of the whip at my old role. Even though the consultant has written to my employer basically saying there's nothing wrong with me. I kind of feel as though all trust has been broken between me and the employer.

 

 

 

 

 

They basically feel as the role will be too demanding for my knee. Which is odd ,as they have guys 20 years my senior doing the same role with dodgy knees. So much so,they provided knee guards for when they have to bend down.

 

 

 

Thanks for the link, I've read it with gusto!

 

 

 

 

You need to try and get the role profiles/job specs for those other roles asap. If you have any access to the companies policies and procedures handbook I would get them too together with any Generic Risk assessments made.

 

I am sure the Union guy would have access to those documents if he is still an employee. Either that or get a mate still working their to source them for you.

 

IMO they sacked you off because of your disability and quite clearly acted unlawfully. I would be preparing to go tribunal


I am fighting it all the way :-x

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Thanks again phaitun!

 

sage advice indeed. This is exactly what I'd suspected...and sort of thought the union guy would be jumping all over company for breaching rules, but he seems quite relaxed on the matter. He doesn't work for my company ,he works directly for the union (not sure if I used 'rep' in right term?) which is why Im a bit concerned at 'laissez faire' attitude to proceedings. I have job specs off the works intranet (still have access) and there are guys the HR guy they openly admitted had knee problems doing the job already:( Also ,many of the drivers are approaching retirement, so I'd assume I'd have better health ? (not wanting to sound ageist, but trying to underline case)

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Lodge an appeal and also an ET claim if the three-month deadline for EqA looms. The mandatory ACAS intervention will suspend the time limit while you negotiate.

 

You do not have wait until your appeal. Take care they don't time you out.

 

Take action early and quickly. Try to find a lawyer. Address all your concerns from now on for the benefit of the ET.

 

Cite this other person as a comparator. Try to find out whether he has the same condition as you. Ask him if he's willing to share details about his knee and OH.

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Lodge an appeal and also an ET claim if the three-month deadline for EqA looms. The mandatory ACAS intervention will suspend the time limit while you negotiate.

 

You do not have wait until your appeal. Take care they don't time you out.

 

Take action early and quickly. Try to find a lawyer. Address all your concerns from now on for the benefit of the ET.

 

Cite this other person as a comparator. Try to find out whether he has the same condition as you. Ask him if he's willing to share details about his knee and OH.

 

Thanks Pusillanimous!

I'm in her middle of an appeal now. They've stuck by their guns and glossed over the points above. It's adjourned til next week as the union guy blew holes in their OH assessment . So hopefully it won't time out. It looks as though getting my job back is a pipe dream :( they're looking at a settlement agreement. Roughly three months pay as I've had a lot of time paid for when off (even thought that wasnt through the kinder ness of my employer,rather it was out of my own pocket via the pension company) so the union guy said :(

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Negotiate, negotiate, negotiate. If that is their plan, tell them you will settle for six months salary to go quietly.

 

Be realistic.

  • Confused 1

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Negotiate, negotiate, negotiate. If that is their plan, tell them you will settle for six months salary to go quietly.

 

Be realistic.

 

We floated that on the table and got a 'you can forget that' reply.

I've lost a well paid job here. All the medical evidence points to the contrary of what the employer is saying. I feel as though they should put a zero on the figure to commensurate for what Im actually losing here. :( I've done nothing wrong, I've complied with all requests from my employer, (medical disclosure, attending meetings when requested ,being generally very open) and Im now looking at getting punted in to the long grass due to a normal medical procedure ,which I came out of with no ill effects.

It leaves a real bitter taste in my mouth when I think about it

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Well canned with medical dismissal and the union suggested I pursue a tribunal. I sent of the legal-pack noting all the details, emails, poorly constructed rebuttals from OH, even the fact you cannot have a role where you're sat down for 75% of the shift and not lift 5Kg. All to no avail, the unions legal team basically quoted the OH stuff saying 'protecting the business' and 'its operational demands which will take a toll on my knee'. So Im basically left with no job, a 'medically dismissed' reference and no recourse to pursue :(

 

How do they accommodate the people already employed with bad knees? Is everyone who has time off destined for the sack? Im now at a loss as for what to do?

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It's rare for a union to fund a tribunal case unless there is some kind of public interest aspect to it.

 

I would suggest contacting a local community law centre or the CAB for private advice as to whether you have a case.

 

Keep an eye on the time line and ensure you file for early conciliation via ACAS in good time should you believe you have.

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Thanks Pusillanimous !

 

I have the forms from ACAS, but as for advice, Im short on that as the lawyers generally want £200 per hour, so at this time I don't want to go 'full steam'. Im aware of the time line, it comes to an end 30/3/15, as all to do. I think I get a month added when ACAS get involved.

Im not sure about what to settle for? Is it time lost and wages (£35k+) or just time after my sick pay ran out or a complete 'loss of earnings and defamation' for giving me a medical discharge with little evidence.

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You would need to get proper advice, as I know little about all the facts.

 

My "armchair" advice is from here it looks like unfair dismissal by reason of disabilty (EqA). You need to mention how much compensation you expect, so spell out all the earnings you believe you've lost and remember to state compensation for injury to feelings, to be determined by the tribunal.

 

Don't worry too much about the earnings claim, as if you win, you can adjust it accordingly, anyway, at the compensation hearing.

 

Downside is cost of the tribunal claim. Upside, you can claim it back if you win.

 

Disability is hard to win, so be prepared to pay out for an expert witness.

 

Do your ex-employers accept you are disabled?

 

Read their reasons for dismissal very carefully to see if they have a legal case for it.

 

Try local charity lawyers for initial free opinion.

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Thanks Pusillanimous

I know not to take the advice 'verbatim' ,its just throwing me a pointer in the right direction. I said to the guy at ACAS that its a lots of very nuanced information I'd be forgetting in six months time when this is all over :)

Finding an initial starting point is a fine art. Your help is greatly appreciated and I'd never be daft enough to think that it was nay more than a little help from some kind soul. I'll begin my journey

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Well, after consulting a few 'free' lawyers. They said I do not have a case. They admit, I've been treated incredibly shoddily, but they've covered themselves with the process.

I cannot challenge the OH's assessment of the situation ass that's not part of the process. I did say 'she could say I have to walk around wit ha ball on my head and that wouldn't be challenged?' To which it was a 'medical professionals' opinion.

I pointed out the contrary evidence from the consultant, the 2 MRI's 18 months apart showing no deterioration, the doctors note and the pension company being happy for me return.

 

This means nothing as its their 'opinion' is based on the jobs role :( Ive lost a well paid job, I have a marker on my CV saying 'medically discharged' and there's nothing wrong with me . It stinks. Nearly six years down the drain .

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I know someone who was turned down by the union solicitors and various commercial and charity ones. They took out a claim anyway...and won.

 

It depends how strongly you feel about it. What you would need is your own expert witness. This would cost at least £600.

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Well, after consulting a few 'free' lawyers. They said I do not have a case. They admit, I've been treated incredibly shoddily, but they've covered themselves with the process.

I cannot challenge the OH's assessment of the situation ass that's not part of the process. I did say 'she could say I have to walk around wit ha ball on my head and that wouldn't be challenged?' To which it was a 'medical professionals' opinion.

I pointed out the contrary evidence from the consultant, the 2 MRI's 18 months apart showing no deterioration, the doctors note and the pension company being happy for me return.

 

This means nothing as its their 'opinion' is based on the jobs role :( Ive lost a well paid job, I have a marker on my CV saying 'medically discharged' and there's nothing wrong with me . It stinks. Nearly six years down the drain .

 

The problem you may have is that a lawyers opinion usually mirrors the unbiased opinion of an independent judge - immoral or not.

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The problem you may have is that a lawyers opinion usually mirrors the unbiased opinion of an independent judge - immoral or not.

 

 

Where you have a case represented on both sides, fully 50% of those lawyers obviously did not mirror the judges, biased or not. Some 10% - 20% of verdicts going to appeal get overturned or sent back, so judges are not infallible, either.

 

The other factor, is employment lawyers often only have the employer's reasoning to go on (= half the picture). Some just assume the employer must be right.

 

Most lawyers are not up to the standards of a judge anyway, who are trained barristers.

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Where you have a case represented on both sides, fully 50% of those lawyers obviously did not mirror the judges, biased or not. Some 10% - 20% of verdicts going to appeal get overturned or sent back, so judges are not infallible, either.

 

The other factor, is employment lawyers often only have the employer's reasoning to go on (= half the picture). Some just assume the employer must be right.

 

Most lawyers are not up to the standards of a judge anyway, who are trained barristers.

 

Not necessarily. Lawyers do still take on cases that they know are more likely to lose than win, as long as the clients are aware of the risk. And when you represent respondents, it can still end up in a tribunal because the claimant won't settle, not because you believe they are going to win.

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A friend of mine decades ago had a heart attack & whilst in hospital after a week had a visit from the company and told him his job is no longer there, in view of his condition as he would not be able to work again, = I got the Union to take up the case and why they bothered to continue arguing I do not know.

 

= His new job was?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? A Court Usher, cost them max also I lost my job 6 months later with the flimsy excuse, cost them max as well I dealt with my own case thru Tribunals.


:mad2::-x:jaw::sad:

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It is a minefield, as I have heard of ppl spending £50K on a tribunal and of lawyers (in the view of the claimant!) bleeding the insurance money dry, and then dropping the claimant.

 

To get back on topic, surely it cannot be the case that the OH view is infallible and set in stone. All opinions even professional ones, must be open to appeal or challenge.

 

It might be useful for the OP if there is some kind of case law in which an OH report was successfully challenged. Bearing in mind, they a paid by the employer to write up the report, they will have a vested interest in writing what the employer wants them to write.

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It is a minefield, as I have heard of ppl spending £50K on a tribunal and of lawyers (in the view of the claimant!) bleeding the insurance money dry, and then dropping the claimant.

 

To get back on topic, surely it cannot be the case that the OH view is infallible and set in stone. All opinions even professional ones, must be open to appeal or challenge.

 

It might be useful for the OP if there is some kind of case law in which an OH report was successfully challenged. Bearing in mind, they a paid by the employer to write up the report, they will have a vested interest in writing what the employer wants them to write.

 

To that end, it's usually sensible to ask for a copy of the instruction letter as part of the disclosure process. That way, you can potentially challenge the report on the grounds of bias.

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The outcome so far on this case makes me feel a little uneasy. It certainly doesn't feel right and needs exploring.


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You should be able to do the Tribunal bit yourself I did, the company concerned caved in at the last minute as they new they did not have a case, as long as you have your facts correct! even Job Centre tried it on and stated they are not paying me the time in between sacked and case, so I took them as well to tribunal,, 1st they offered me 50% I said no! case continued and I won (Suppose to have) the outcome was Yes you won BUT under Regulation 1,2,3,4,5,.6,7,8 we do not pay you Tribunal amount, = 50%, Oh! if I did not agree I could take them to a Tribunal>????? we have just come from One. That is the dirty Government way of withholding Public Funds unless of course they want them,

 

This was late 80s.


:mad2::-x:jaw::sad:

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Im seeing the knee surgeon tomorrow for a follow up. I can ask him to write a contrary letter challenging the decision for tribunal purposes.

I was sacked on the grounds of 'capability' ,the OH report set ridiculous parameters which couldnt be for filled in any role. Thus, they had recourse to sack me. My knee has healed, the osteopath said he'd put 'no restrictions ' on my return to work .The employer has just used the knee repair to get rid of me.

I'll explore more avenues tomorrow once I've had a chat with osteo. I have till 30/4/15 to file, so trying to garner as much supporting info as I can. I've explored many 'case file law' suits and it seems I do have a case. The union only work on a 70% chance of success ,so it might be worth me filing myself, its only £160.

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you are getting medical evidence *after* your hearing?

 

You had nothing on the day saying you were fit for work?


Never assume anyone on the internet is who they say they are. Only rely on advice from insured professionals you have paid for!

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