Facing Dismissal on sickness grounds

[stuckinarut11]

Writing on behalf of partner

 

Employment Start date Jan 2016

 

At time of employment a disability was disclosed at the screening process and a full assessment was carried out by the DWP access to work team who advised a footrest and cushioned adjustable chair for the sciatica. The employer employed on this basics.

 

A year into the employment no support or help has been provided by the employer and to date no specialist chair or footrest have been supplied.

 

The employer is a national company and the working environment is high paced, at times when the employee has been in pain at his work station he has taken unauthorised breaks to strict and his adherence to schedule has been questioned.

 

The sciatica is nerve related and when bad can cause sever migraines.

 

Due to lack of support there has been sickness when the sciatica has flared up or a sever migraine has been present, if the employer supported offline work when at work with a headache so the employee was not constantly starting at a VDU (visual display unit) monitor this would help however the employer has declined this.

 

Furthermore the employer has failed to support a flexible payback scheme which other employees have had approved.

 

Would the equality act 2010 be applicable considering the disability has been disclosed from onset and the employer has failed to provide the items suggested by DWP access to work team?

[stuckinarut11]

Letter dumped at desk when employee was on a telephone call

neil22.pdf

[Emmzzi]

so this is not the first meeting? What was agreed at the previous one?

 

Has a greivance been raised about the lack of equipment?

 

How high has the absence level been, over the year, and in the last 3 months?

 

Equalit Act may apply. only a court will decide for sure. At the end of the day the employee still has to be able to fulfil the terms of their contract.

[king12345]

One question, how did you get registered disabled for sciatica?

I've been suffering from it very badly for a long time and when I asked my gp about it (mainly for the blue badge because some days I can barely stand) he said that it's not a condition recognised as a disability

[Sidewinder]

One question, how did you get registered disabled for sciatica?

I've been suffering from it very badly for a long time and when I asked my gp about it (mainly for the blue badge because some days I can barely stand) he said that it's not a condition recognised as a disability

 

This is not registered as 'disabled' in the Blue Badge sense of the word - more in line with EA guidelines in that the OP has:-

 

"a physical or mental impairment that has a 'substantial' and 'long-term' negative effect on your ability to do normal daily activities"

 

I am with Emmzi - what was 'agreed' at the meeting on 28th October? What is the 'acceptable' level of sickness? Has the employee recorded a grievance at the lack of 'reasonable adjustments' which the employer said they would implement? Was this failure recorded at the meeting on 28th October?

 

Further - does the employee consider that the provision of a footrest and chair would have removed or reduced instances of fatigue, migraine and sciatic pain? Has the employer scored absence in the same way as they would for a non-disabled employee? Has the absence caused by the disability been recorded and scored separately?

 

The employer may well have to tread carefully here, as there appear to have been some failings which might have caused the absence, but equally I feel that there is more to tell from the OP's side

[sangie5952]

This is not registered as 'disabled' in the Blue Badge sense of the word - more in line with EA guidelines in that the OP has:-

 

"a physical or mental impairment that has a 'substantial' and 'long-term' negative effect on your ability to do normal daily activities"

 

 

In fact there is no "blue badge sense of the word" either. There is no longer any such thing as registered disabled; and the only definition used in law is that contained in the 2010 Equality Act. There are "tests" or conditions attached to blue badges and to certain benefits, but these are not about specified health conditions, they are about impacts - so ability to be mobile, ability to plan routes etc. A very few conditions, such as blindness or cancer, are treated as being automatic disabilities.

 

King12345 - Asking a GP about disability law is no different than expecting asking your lawyer why your foot is hurting! But being unable to stand on some days, even on most days, will not get you a blue badge. You must either qualify for the higher rate of DLA, get at least 8 "moving around points" for PIP. or have certain other "passport" eligibility; or you must be able to convince your local authority issuing the badge that you qualify for one (which is next to impossible) because of your limitations even though you don't receive any of these benefits.

 

I should also point out that having an Access to Work Assessment is not a confirmation that one has a disability, or that it is recognised as one - Access to Work provide specialist support for long term health conditions as well, and that is not the same thing as a disability. For example, you may have osteoarthritis, so certain DSE adjustments may help you to manage this condition better. But having osteoarthritis can benefit from, say, a particular type of chair even if you have no arthritic pain associated with the condition and no substantial impact from the condition (which is entirely possible). On the other hand, someone may have debilitating and ongoing pain. It isn't even that simple! I have, amongst other things, osteoarthritis. My left hip has recently been replaced after substantial pain for over three years, and excruciating pain for most of the last year. My right hip has exactly the same "amount" of severe osteoarthritis. But there isn't even a twinge yet! To all intents and purposes for everyday life, it is perfectly normal! It's ridiculous and defies all logic, but it is true.

 

 

But I also agree, until Emmzzi's questions are answered and the circumstances are clearer, it is impossible to comment on the OP. Declaring something to be a disability and actually being judged as having one are two very different things; and even if an employer agrees there is a disability, the Equality Act provides far fewer protections than most people think it does.

[king12345]

Thanks, all clear.

I guess that because my condition is so random (most days I can go along with acceptable pain, some others I'm in agony), I just got to get along or at best ask for some adjustment at work.

[ericsbrother]

It also begs the question was this recent absenteeism a direct result of the impairment or brought on by the employers failure to make those necessary adjustments agreed beforehand? As for VDU.s there are laws and guidelenines that cover working with them and the employee has a reasonable say in how the work station is set out to avoid such problems. Was this properly assessed at any time other than the points about the chair and footrest ( the adjustable chair is a right anyway but subject to cost considerations)?

[stuckinarut11]

Absence over year 5 instances all related to miagraines and back pain

 

Last meeting was after 3 instances in a 6 months period. My shifts were amended to 30 hours.

 

Since this meeting have had one 2 day absence and left work ealry once due to refusal to do offline work.

 

Prior to initial meeting 2 of the 4 absences were after completing over half of the scheduled shift yet they are being counted as full days.

 

The previous meeting resulted in a first and final and upon appeal it was upheld as the employer had a service to provide and the levels of sickness were affecting the agreed service levels

[sangie5952]

Could you answer the question about whether you have raised the issue of the equipment - and was that a grievance?

 

Disability or not, if the absences are affecting the delivery of agreed service levels, that is going to give the employer a strong case to dismiss. Especially given the fact that there isn't two years service, so discrimination is the only grounds upon which any complaint could be made. Five absences are a lot in a year. And reducing the length of shifts is a significant adjustment they have made. And walking out of work rarely strengthens a case - it was very unwise to walk out because of a refusal to allow offline work.

 

Could you please provide a run down of the formal processes you have used to ask for adjustments such as doing offline work - how did you ask, did the grievance procedure get used and did you appeal the refusal?

[stuckinarut11]

Whilst absence affects the business and 5 does seem like a high number this accounts to 15 days.

 

I'm confident a employee who went off twice with a virus would take the same number of days.

 

The absences are short term.

 

Regarding the reduction of hours it is documented that was at my request not suggested by the employer.

 

A grievance had not been filed however since receipt of the letter above I have filed one I have also been to my gp who has signed me off for 2 weeks with stress at work

[stuckinarut11]

When I asked my line manager during the last meeting about the equipment I was advised the request had expired and I'd need another assessment.

 

Looking back this has not been documented in the first and final written warning documents or appeal

[BazzaS]

"The employer is a national company "

Do they have (or have access to) an occupational health service?

If so, have they been involved??

[stuckinarut11]

"The employer is a national company "

Do they have (or have access to) an occupational health service?

If so, have they been involved??

 

Yes they do have access and no they have not been involved well there were initially by phone to do an assessment to see if job was suitable and they supported the access to work, last time I spoke to them was Feb 2016. It was an arranged telephone meeting so no ongoing contact

[stuckinarut11]

The employer is a large home phone broadband and mobile company that supplies lines to the majority of UK homes via an outsourced company they also provide the services to homes under their main brand name

[sangie5952]

Unfortunately, again, if you haven't raised the failure to provide the equipment for most of the year, then that does not strengthen your argument. If it would have made such a difference, it could be argued, why didn't you do more to obtain it? And whilst I agree that 15 days could equally be two longer bouts of sickness for another employee, I think your are missing the point that 15 days is an awful lot of sickness for a year! I work with mainly public sector employers, who are notoriously "lax", and the targets, on average, are around 9 or so days per year! If toy had 15 days in a year you would also be on a final warning by this stage with many of them.

 

I do think you have to be realistic here. Even setting aside the fact that the chair and leg rest were not provided (but you also didn't push for this), the job appears to involve a lot of vdu work which is causing migraines and won't be improved by a chair or leg rest. Being honest, is this job really suitable for you? Wanting off line work is fine, but was that part off the job to begin with, or is that another adjustment? There is a limit to how far, even for a large employer, is expected to go. And there is already a question on the employers mind about failing to deliver service requirements. And it is generally, as I said previously, a lot less is required of them than many people believe.

 

What do you want as an outcome here? Given that nothing happening at all isn't ever going to be an option? Is there some compromise that would mean you wouldn't be off sick so much? And would it actually deliver what the employer wants as well?

[BazzaS]

Whilst absence affects the business and 5 does seem like a high number this accounts to 15 days.

 

I'm confident a employee who went off twice with a virus would take the same number of days.

 

The absences are short term.

 

Multiple short term absences are seen as more disruptive than 1 or 2 periods of absence leading to the same no. of days off work.

 

15 days off in 2 episodes : Bradford Score 60

15 days off in 5 episodes : Bradford Score 375.

 

https://en.m.wikipedia.org/wiki/Bradford_Factor

Whilst the Bradford Scoring System was originally envisaged as a tool to identify those in need of occupational health support, sadly it has also come to be used as a "stick to beat the employee with".

 

If your employer had an occupational health provider : it would have been far better to go to them for input before things reached this stage, especially if they were previously involved.

They might have been able to forestall a disciplinary; but can't help if they aren't involved.

[stuckinarut11]

I want to reduce my shifts to 6.5 a day over 5 days this being the same 30 hours on a fixed basics

 

Half hour break would allow a 6 hour working day x 5 total my 30 hours.

 

Rather than some 10 hour shifts some 4 and some 9 all on a fully flexible contract.

 

The job would suit me if I was not there longer than 7 hours at a time.

 

However to allow things to move forward I'd also want the final written removed as the employer could have done a lot more to support up to now and this would be on the provision that I'd sickness levels don't improve on new shift plan it could be reinstated.

 

I do not think 6.5 hours daily is an unreasonable request however apparently resource don't allow

[sangie5952]

If resource does not allow it you are fighting a losing battle. Disability or not, no tribunal will instruct an employer how to run their business, and telling them that they must find the resource would be doing exactly that. So unless you can prove this is not true, you are not going to get that.

 

I also don't see any prospect of the warning being removed.

 

Let me approach this another way. What business case can you construct for your employer that demonstrates that they get what they want (you in work) and which you can deliver. What would it take to achieve that? There is no point in saying you want things you know you cannot get. But that doesn't mean that there is no way to get anywhere. I do think you have to understand that this cannot be a shopping list of what you want, and all one way. Without making any judgement about what is reasonable or not, you want a chair, a leg rest, to not have to work so much on line, fewer hours, hours that are spread out to suit you, and a warning for sickness absence removed from your record. What do they get? Right now I am seeing no benefit to the employer. There is no "list" here for the employer. You can't sell a deal like this.

[stuckinarut11]

My last response was in reply to questions asked.

 

While I appreciate I am not in a position to dictate I am questioning why absences have not been recorded as disability related absence and sickness absence.

 

On site there are over 400 employees so I fail to see why they cannot support a flexible working application for 5 6 hours shifts or even suggest a compromise. The shift patterns changed 5 months into the employment

 

The bottom line is they accepted me as an employee with a full disclosure and have failed to support and or make any reasonable adjustments to help reduce disability related absence

[sangie5952]

My last response was in reply to questions asked.

 

While I appreciate I am not in a position to dictate I am questioning why absences have not been recorded as disability related absence and sickness absence.

 

On site there are over 400 employees so I fail to see why they cannot support a flexible working application for 5 6 hours shifts or even suggest a compromise. The shift patterns changed 5 months into the employment

 

The bottom line is they accepted me as an employee with a full disclosure and have failed to support and or make any reasonable adjustments to help reduce disability related absence

 

Well, in the first place, there is no requirement to record sickness due to disability separately. This is something people often believe, but it is a myth. Separate reporting only applies to maternity. So there is no question to be answered in that. They don't have to.

 

In response to flexible working, there is a right to ask for it. Not a right to have it agreed. They have, according to you, said that this does not meet their business requirements. They don't have to prove this.

 

And I am sorry, again, this is not a judgement, but you have said you have a disability. That is your opinion. Only an employment tribunal has the power to determine that. And they did reduce your hours, so it may not be much, but you can't say they have done nothing.

 

It does appear that there is no compromise to be had here, so I am afraid it would appear that the answer is only one. You will have to wait until you are dismissed and make a tribunal claim, and see whether you win. That wouldn't be my preferred advice. But they appear to be unwilling to budge for whatever their reasons are. And you are equally resistant. And that is without saying either of you is right or wrong - it just appears to be the case. And sometimes that is just how it is. I cannot see any way of bringing these two positions together and making it work. So the inevitable outcome would appear to be dismissal, and then you will need to decide if you are willing to go to tribunal. Are got in a union, and if so, have they indicated whether they will financially support a classroom?

[sangie5952]

Gosh, my unnoticed predictive texting errors made a real mess of that last line. It should have read - are you in a union, and if so, have they indicated whether they will financially support a claim?

[stuckinarut11]

Today had an email confirming receipt of the grievance, was from senior HR advisor as per the LinkedIn profile. Taken off site level.

 

She has advised she will update me of next steps shortly and a telephone discussion is taking place tomorrow she has been advised I do not wish to discuss informally to which she responded she just wants to chat to confirm process etc etc

[sangie5952]

This translates as "you are screwed". I am sure you read your contract .. Which bit of it said " find someone on LinkedIn" ? I hope you can make some sort of compromise. But at this stage it is formal. There are no chats. And certainly none that involves YOUR best interests.

[ericsbrother]

with regard to the last line of this, you applied for a job and part of that application and acceptance process would include you confirming that you are capable of doing the job offered. Now, making adjustments regarding your workstation to fulfiltheir obligations is very different to what has happened since. Ignroing the absence part of this, you are currently waving a flag that read that you are not capable to do thi job and dismissal on capability grounds can be effected regardless of disability as the "reasonable adjustments" have to be reasonable. An extreme example would be that there is no such thing as wheelchair friendly scaffolding.

What has happened in the past year could be written off if they thought you could change your current patterns of behaviour and do a full week every week with a new footstool or whatever but by wanting to impose new terms upon them when you have so security of tenure is akin to writing your goodbye letter.

It does rather look as though if they cant see a change it will be goodbye on capability grounds.QUOTE=witsend99;4984684]My last response was in reply to questions asked.

 

While I appreciate I am not in a position to dictate I am questioning why absences have not been recorded as disability related absence and sickness absence.

 

On site there are over 400 employees so I fail to see why they cannot support a flexible working application for 5 6 hours shifts or even suggest a compromise. The shift patterns changed 5 months into the employment

 

The bottom line is they accepted me as an employee with a full disclosure and have failed to support and or make any reasonable adjustments to help reduce disability related absence