Protected characteristics, and suspended from work, unfairly treated - now ET Claim

[Bazooka Boo]

OK, this is a new chapter for me.

I have protected characteristics under the equality act, namely PTSD and a traumatic brain injury (TBI).

Before I started working for this international company I had to go through a medical and discuss at some length how it affects me and the strategies I have in place to prevent me from spiralling into crisis.

All good, got the contract and have been working for them since last July.

A couple of weeks ago, I made a remark to another employee, which they took offence to and reported it to my supervisors some time later.

The following day I was requested to go into the office where their were two of my supervisors, one sat taking notes on the computer, and the other stood with a sheet of paper with questions on.

I was then informed of the complaint made, and I sat there defending myself.

The notes then went up the chain to HR.

Next time I was in work I was told I had to go for another meeting with HR, off I went and sat across the table from me were a member of HR and the same supervisor who had previously questioned me.

At the end of the meeting, HR informed me that I was suspended on full pay, and that it would now go to my manager for him to decide the best course of action.

I received a letter the following day outlining the meeting and that I was being suspended for 'gross misconduct'. The first time that has been mentioned.

Now, I've already checked out of there, I don't intend going back or working for them again.

 

BUT, what I am interested in is have they gone about this the right way?

Did I need a representative with me?

Can I ask that this is dealt with in writing, as is my preferred method of communication, due to the TBI I often say the first thing that comes into my head when in actual fact that isn't what I want to say at all.

Yes it's still a bit raw, and it's been a shock as the comment wasn't said maliciously, in fact it was more of a remark. 

I would like both parties to learn from this, myself keep my mouth shut, no-one understands my sense of humour, and the company, you just can't treat everybody with the same brush, some need assistance to be put in place to help out.

 

Had I known it was gross misconduct I would have better prepared myself and requested an advocate to assist me, to date I still don't know if this was a disciplinary hearing? They just said it was a 'fact finding' meeting?

 

TIA.....

[honeybee13]

I'm sorry to hear this, BB.

Are you in a union by any chance? @Emmzzi here is very good on HR matters and if she's around at the moment, I hope she'll pop in.

HB

[Bazooka Boo]

Thank you HB.

Unfortunately I'm not in the Union, knew I should have listened to the wife!

It is what it is, I already know they're going to sack me just by their attitude towards me.

They said they will get back to me this week, I'm just trying to stay one step ahead of them, slow them down a bit, make them sit up and think 'Ooh actually we haven't followed the correct procedure, he's got a point here'.

I'm not bitter or angry, just unhappy with the treatment.

[whitelist]

Looks to me the first part of the investigation were fact finding interviews. Only then, when it is elevated to a formal interview, you can have a union rep/work colleague or approved companion to sit in on the meeting. Suspension is perfectly normal and nothing to worry about.

 

With a formal disciplinary meeting, minutes will be taken. They will then send you a copy written up and ask if you agree on what has been stated. This will be with your department manager when you get the written invitation to attend. They normally give you up to three days' notice when this interview is to take place. But can be longer if needed and agreed.

Your disability will and has to be taken into consideration at that formal meeting.

As with all so called Banter at work, it is know your audience and how they will receive suggestive nature of the so-called joke.

Edited September 25, 2023 by whitelist

[Bazooka Boo]

You're not kidding about know your audience!

He was a big unit full of muscles and steroids, hence why he was so angry!

[Emmzzi]

This is just a fact finding meeting so no right to be accompanied. Doing that part in writing would be really unusual because it allows the participates to prepare their statements - initial reaction is very important when trying to ascertain truth.

if you know you said something which is so bad it could be gross misconduct - then apologise, ask for training so you will do better in the future. But if you did it - don't try and loophole yourself out of it. Do better next time, and ask for help to do better next time.

 

[Bazooka Boo]

Thank you.

I have repeatedly asked them what they would like me to do, I have offered to apologise verbally, and in writing but they have declined.

Certainly not trying to loophole myself out of it, there's no denying I did what I did, I just don't want to be seen off and put at a disadvantage due to the complexities of my situation.

Well received the confirmatory email that it will be going to a disciplinary hearing, I am allowed to take another member of staff or an accredited trade union representative but NOT by a person acting in a legal capacity?

 

I wonder why?

[Emmzzi]

because if you bring your lawyers, they are bringing theirs. This is simply standard procedure. In line with Acas guidelines.

[Bazooka Boo]

Now that is brilliant! 

 

Is there any merit in a s.15 EA 2010? argument? Or am I simply clutching at straws here?

Whilst the PTSD medication has some bearing on my actions that day, it is most definitely down to the TBI that I made that statement, in fact I'm amazed this situation hasn't arisen before.

 

All mitigating circumstances for the disciplinary hearing I guess, I won't have a job at the end of it but hey ho, it's another experience.

[Emmzzi]

You'd need a doctor's report saying the injury makes you say offensive things *and* that it is likely to be a disability under the equality act (not every injury is)

 

Is that possible?

[Bazooka Boo]

Most certainly possible, traumatic brain injury manifests itself in ways that even surprises me!

[Emmzzi]

Then get talking to medics, or ask for an OH assessment.

[Ethel Street]

1 hour ago, Bazooka Boo said:

Well received the confirmatory email that it will be going to a disciplinary hearing, I am allowed to take another member of staff or an accredited trade union representative but NOT by a person acting in a legal capacity?

 

I wonder why?

 

That's your legal entitlement under employment law, to be accompanied by a workplace colleague or union rep, or a union official. There's no legal entitlement to be accompanied by a lawyer. So they are just repeating what the law says.

 

Good luck.

 

 

[Bazooka Boo]

Thank you all for your valuable input and advice, sterling as always!

I've no intention of being ridiculed and shamed at the disciplinary hearing, so won't be attending, I've a Dr's appt Thursday to get signed off work, then when that runs out I'll email them my resignation, followed up with a hard copy of course.

[Bazooka Boo]

Well the plot thickens.

Been signed off for a month by the Doc. All good there, allows me some much needed breathing space.

The head of HR contacted my Wife, as she is now dealing with this matter on my behalf, and the phone conversation is pretty damning, they are on the defensive straight away, stating that ''no decision has been made yet, he needs to follow the ''process''. 

The ''process'' they keep banging on about is actually unfair IMHO.

The process might be perfectly fine for someone without MH issues, but what they have done is to ambush me, bring me into the office, not inform me the reason why, then proceed to fire questions at me about what I said 24hours previous.

Like the wife said to them, I simply repeated what I was told, I actually didn't formulate the sentence, just repeated it.

They have also denied me apologising either written or verbally to the employee telling me I ''just have to follow the process''.

There was no response to the 4 weeks sick note I sent, there has been no follow up or duty of care from the business to see if I require any MH support, which is why I'm calling BS on their ''we haven't made a decision yet'' remark.

What they have done is made an appointment for me to see Occ Health in a couple of weeks.

Cancelled the disciplinary hearing for next week, and no doubt discussing, at length, with their legal team, how they can avoid an employment tribunal, this has really set me back, I have never been made to feel so small and insignificant as I do now, this has definitely regressed me.

I fail to see having worked there for nearly 18 months, with no complaints about my work, they are now deciding whether I should have been employed at all?

[Emmzzi]

I thought you had decided what you were going to do? (Hence why I offered no further advice)

Nothing they have done so far looks illegal to me. They called you in, they asked you some questions, and did not breach any legal requirements.

If your disability is such that you cannot answer a few questions about things you did and said, a very short time ago, then that raises much bigger questions!

If you are leaving - leave. Why wait?

[Bazooka Boo]

I actually enjoy the bloody job, ask me those 'bigger questions'.

And I can enlighten you as to the complexity of brain injury and frontal lobe damage including complex PTSD and how answering a few questions from previous interactions with people is actually extremely difficult.

This is the same attitude I'm getting from the company, I appreciate it is hard for those who don't have experience of the same issues as I, but to fail to even try and comprehend or understand them is IMO unfair and discriminatory.

One size does not fit all, their ''process'' doesn't take into account disabilities, the equality act goes further than installing accessible toilets and braille notices.

[unclebulgaria67]

I suspect that the company are in a difficult position. Suspended on full pay and now you have a fit note.

They cannot really complete the disciplinary process at the moment due to your health, which is why they have got occupational health involved. You then have to think why they have asked OH for an opinion?

May be the best option would be to negotiate a settlement. They pay you for x number months and your employment ends for health reasons without it being for misconduct.

[Emmzzi]

In your day to day work, are you required to answer questions? I am guessing yes... almost everyone is. So a further adjustment for answering questions would be really hard to justify.

A disability is not a get out of jail free card. I have a disability myself so I don't need to be lectured on adjustments.

If it is a requirement of the job that you don't say offensive things to work colleagues, and you are unable to do that.. then they may be able to dismiss. Same way that if it is a requirement of the job that you be able to fit into a 2m wide crawl space at heights, and you can't.. then you cannot do the job.

It depends what you said!

I will give you my usual advice for people who want to keep their job. I am pretty sure it will not sit well with you, going on what you have said so far.

- be specific about what adjustments you require. So far I see you saying you need them but you haven't actually said what it is that you need, just that they are being unreasonable. Note they also do not have a time machine so leave out the woulda shoulda couldas.

- apologise for your moment of madness

- factually, not emotionally, present any mitigating circumstances. This means you need to lose the anger and the sarcasm I see in your posting style, and stick to the facts.

- request an occupational health or further medical opinion, or get one from your own specialist. (I assume you have had a formal diagnosis based on what you have said.)

- offer to have whatever kind of sensitivity training would be relevant

- offer to undergo mediation

If you want any chance of a positive outcome then you do, indeed, need to follow the process.

Or; you can continue to channel your efforts into being angry. Your choice.

 

Edited October 1, 2023 by Emmzzi

[Emmzzi]

42 minutes ago, Bazooka Boo said:

Cancelled the disciplinary hearing for next week, and no doubt discussing, at length, with their legal team, how they can avoid an employment tribunal, this has really set me back, I have never been made to feel so small and insignificant as I do now, this has definitely regressed me.

 

They won't be talking to their legal team at this point, There is nothing concrete to discuss. They are following the process *as ACAS says they must* and making an adjustment for you by taking OH advice. No one is out to get you.

The disciplinary is cancelled because you got a sick note - this is your action, not theirs.

I will remind you that they did not want any of this to happen - so much bloody hassle and paperwork! -  but your actions forced their hand.

For what it is worth - I think you're being paranoid.

Edited October 1, 2023 by Emmzzi

[Bazooka Boo]

Thank you both for your input, Emmzzi, I'm not angry one bit, just looking for advice.

[whitelist]

Am sure Emmzzi will agree with me for any disability claim to be successful you have to identify a Provision, Criterion or Practice putting you at a substantial disadvantage over fellow employees.

No disciplinary meeting has been held and they seem to be correctly following the disciplinary procedure as to the ACAS code of practice.

Can see no reason you cannot keep your job, as the disciplinary process will put future obligations on you with the occupational health report recommending reasonable adjustments where necessary.

You seem to jump the gun with the worst-case scenario.

My advice repeating Emmzz is to go to the formal disciplinary meeting and be humble, acknowledge your shortcomings and work with the employer. Only after and if they dismissed, you consider an ET1 claim.

[Bazooka Boo]

Almost three months down the line and there has been very little to no movement.

I have a grievance against a member of HR and one of the duty managers for discrimination, waiting for them to arrange a date for the grievance meeting.

ACAS have come back with a request for what I will accept as a resolution, so looking at the VENTO scales and drawing up an impact statement, and see how the employer react to my response.

 

[Emmzzi]

It seems to have jumped from "I am waiting to be fit enough for my disciplinary" straight to "I have taken out a grievance."

Do ask questions if you have any, but we would need the in-between bit of the story.

[Bazooka Boo]

I made a complaint against the employer of discrimination due to disability, because they were only disciplining me and not the other employee who had said what I repeated.

The day before the disciplinary meeting, I received a new evidence pack containing a new statement from this employee, this was clearly their reaction to my disability discrimination complaint, they are aware, and have agreed that any evidence needs to be sent to me in good time prior to any meeting.

Whilst they had sent me an email with the new hearing date and time, along with 10 attachments containing this new statement, 5 days prior to the meeting, it wasn't until the day before that they sent me a hard copy, this is when I noticed the new evidence.

I cancelled the meeting due to being given insufficient time to prepare in light of this new statement.

I spoke with ACAS regarding my options, and have now placed two more grievances against a duty manager and a member of HR.

The disciplinary hearing is now suspended while they deal with the grievances, I have just sent off a response to ACAS early conciliation saying that I will accept a figure using the Vento middle band.

The employer can only say no, and off to an ET we go.

Hopefully, that should have filled in some of the blanks?