Advice re dismissal please

Miley

Hi, I am wondering if anyone could advise my husband on a situation he has at work please. He has received a letter today, asking him to attend a meeting on Friday with a view to his dismissal.

Background

Hubby was diagnosed with Crohn’s Disease & Auto Immune Liver Disease in December 2000. At the time he was working full time. He continued in this work (with absences when he had flare-ups) until May 2003, when it became impossible for him to carry out his duties. He left the company & went on Incapacity Benefit. In 2006 his conditions had settled down enough for him to consider returning to work. He was taken on by Royal Mail in December 2006, as a part-time Postman. This was on a 6 days on, 6 days off rota. Hubby was totally up front about his medical conditions, and was also given a medical before a contract was offered.

Absences

March 2007 – Diarrhoea & Vomiting (says 4 days lost but we are sure it was 3)
June 2007 – Liver Disease 1 day
October 2007 – Migraine 2 days
December 2007 – Stomach Upset 1 day
February 2008 – Crohn’s Disease – 7 days – hospital admission
March 2008 - Crohn’s Disease – 2 days
May 2008 - Crohn’s Disease – 3 days
May 2008 - Crohn’s Disease -3 days
October 2008 - Crohn’s Disease- 3 days
January 2009 - Crohn’s Disease- 3 days – hospital admission

Jan 2008 – Stage 1 triggered
March 2008 – Stage 1 not issued
May 2008 – Stage 2 triggered
June 2008 – Stage 2 warning
January 2009 – Stage 3 triggered

Letter received 15/04/09 – dated 01/04/09 – Giving consideration for dismissal on the grounds of unsatisfactory attendance. States “Your sick absence record has been referred to the Employee Health Services Doctor who has forwarded a report (copy attached) and there does not appear to be any underlying reason for your absences.

Attached letter dated 5th February by Employee Health Services Doctor states;

“As managers are aware, from previous reports, Mr ****** has underlying intestinal (Crohn’s Disease) and liver conditions, both of which are treated by a specialist, with various immuno-suppressant medications. Despite this treatment, both are likely to remain prone to unpredictable relapse over time. A recognised side effect of his medication is suppression of the usual immunity to common infections, although I note no such absence in recent times. If the effects of his medication were to be disregarded, he would be seriously ill and impaired long-term for all activities of daily living. It is therefore likely that he would be considered to fall under the Disability Discrimation Act (DDA) 1995 (as amended 2005) for both conditions.
All absence periods are related to the underlying problems, except the two days in October 2007, due to migraine.

Where to go from here? In our opinion, Royal Mail has totally contradicted themselves. Does hubby have a case for unfair dismissal if on Friday they decide to sack him? I really don’t know anything regarding employment law but this just doesn’t seem right to me that they can do this. Any advice would be appreciated please.

hedion

I think they would struggle to sack him on those grounds altough he has had a lot of time off.

Being there for as long as he has i would think they would just make him redundant if they needed to let him go for which he would be entitled to a small severnce pack but they may offer slightly more

Floss

Is your OH a Union member? If so, he needs to speak to them ASAP.

If not, speak to ACAS LINK - I think you are right when you say they have contradicted themselves, the Dr's report seems to say there is an underlying cause to his absences.

Also check out the DDA with regard to Crohns Disease. LINK

987654

hedion wrote: »

I think they would struggle to sack him on those grounds altough he has had a lot of time off.

Being there for as long as he has i would think they would just make him redundant if they needed to let him go for which he would be entitled to a small severnce pack but they may offer slightly more

There are criteria to be met in law before redundancy can be offered. Royal Mail would be breaking the law if they just made someone redundant under this situation.

IMO, his absence record isn't too bad based on his medical condition. RM will make allowances based on his condition but the triggers and need for interview are part of a process and therefore must happen. It is up to the manager to make a decision on whether or not to dismiss. The manager will be concerned that the frequency is increasing.

He should take either a union rep or compenent colleague to support him at the meeting.

LinasPilibaitisisbatman

Its likely he will be offered a different job or if none available dismissed on capability grounds.

Yes he is ill and that is backed up but dismissal on capability grounds is still possible and likely I would suggest.

Emmzi

the broad question is, is he able to fulfil the terms of his contract? I would suggest no, and his condirtion appears to be having greater impact than when they took him on.

I am not aware of any reasonable adjustments the employer could make to enable him to fulfil his contract - are there any?

I suspect it will be a case of *how* he goes rather than if, I'm afraid. Ill health retiral?

DCodd

Average sick days per year is between 8 and 9. Your OH was ok in 2007 but 2008 was 18 days 2009 so far 3 days. The big question is, when he joined RM did he sign a specific delcaration that the disabilities would have no effect on the performance of his duties? and did he estimate the number of days sick he would be likely to take?

We had an employee with medical disabilities. It was a number of years ago now but from that experience, if your OH was very upfront about the conditions and said that he would be likely to need days off for hospital and treatment etc then the DDA would protect him, however the apparent increase in the regularity of the attacks of the Crohns Disease (Very painfull and unpleasant) may give them grounds to seek "amicable" ways to terminate his employment.

custardy

right you need toget serious advice
a stage 3 in RM speak is nearly 100% dismissal
im going to PM you a link

jobbingmusician

Look up the disability discrimination act. Your OH is at risk of being dismissed as a result of disability. You may want to contact the DRC and ask if they can help at all - it is outrageous that they are saying 'there does not appear to be any underlying reason for your absences' when your OH has a diagnosed medical condition such as Crohn's.

DRC helpline - 0845 604 6610

floss2

jobbingmusician wrote: »

Look up the disability discrimination act. Your OH is at risk of being dismissed as a result of disability. You may want to contact the DRC and ask if they can help at all - it is outrageous that they are saying 'there does not appear to be any underlying reason for your absences' when your OH has a diagnosed medical condition such as Crohn's.

DRC helpline - 0845 604 6610

Also seems to be a direct contradiction of the Dr's report commissioned by Royal Mail (see first post).

Miley

Many thanks to everyone for your replies and PM's.

OH is not a member of the Union, which makes this all the more frightening. It's just so frustrating. They knew fully of his medical conditions when they took him on and they also knew the illnesses are unpredictable. He can go months & months without a flare-up, and then have a few in a short time. I don't think, considering this, his sick record is that bad. He has made every effort to attend even when he's not been feeling great & has also returned to work despite having a Doctor's certificate covering him for further time off (see May 2008). It seems however this has done him no favours as he ended up having another 3 days off in the same month and that counted as 2 absences.

Off to phone the DRC, thanks for the info. Will keep you updated.