Have I been unfairly dismissed??

SG41

Hi would be grateful for any advice

This is so long winded.. Sorry!!

Developed joint pain and swelling at the beginning of May.. Went to GP and since then have been signed off work with severe joint pain.. He tried several medications without success. I am a painter/ decorator.

I received a letter from my company inviting me to a meeting to discuss "The continuing role of painter within the company" on 21/06/11. It stated the meeting was not a Disciplinary therefore I may not be accompanied. I contacted work on the morning of the meeting to say I was unable to attend due to feeling too unwell. I was asked during the phone call when I was likely to return by the owner.. said I couldn't give a date as the GP was arranging further investigations to determine the cause and was not prepared to sign me as fit for work.

I then received 2 letters from the owner of the company on 05/07/11.. The first one outlined the reasons for the meeting.. firstly that the painting was being outsourced to another company and I would cease to become an employee and be employed by the other company.. And that I would retain my current terms and conditions.. And secondly they wanted to discuss my level of absence and my capability to carry out my duties. The letter also stated that they required a report from my GP and If I did not object by the 08/07/11 they would assume they had permission to contact my GP.

The second letter stated that under AMRA they required my written permission, had enclosed information re AMRA and a consent form.. Neither were enclosed.

My SSP was due to be paid 4 weeks in arrears on 08/07/11.. However was not paid into my bank.. I telephoned the company several times to be told eventually that the owner would deal with me on his return to work.. I contacted ACAS who gave me a contact number for the Inland Revenue.. They tried to contact him but failed.

On 11/07/11 I emailed the owner requesting that my SSP be paid, that the Inland Revenue had been unable to contact him.. and also asked him to clarify whether or not he required written consent to contact my GP.. I also made him aware that the AMRA info and consent form were not enclosed.

I received a reply.. to say my SSP would be paid.. And that I was being"obtuse" in relation to the letters dated 05/07/11.. That I should complete the form.. that I never received.. And that he wasn't in the slightest interested in what the IR said.

I received a cheque by post for my SSP on 12/07/11.. The written and figure amounts did not tally however after several phonecalls and an email I was issued with a new cheque that day.

Recieved a 2nd letter inviting me to a meeting on 19/07/11 to discuss "the continuing role of painter within the company". Again the letter stated this meeting was not a disciplinary and I was not entitled to a representative. Replied by email saying I still felt too unwell to attend but was aware of my role being outsourced.

I got a letter a few days later which states I was contacted several time re my absence.. That they have arranged to meet me on 5 occasions.. at my house.. at work.. or wherever I would feel comfortable.. that I refused them access to my GP records.. That they are unable to assess my return to work due to my lack of communication.. And that at the last meeting I failed to attend it was decided to terminate my employment. Despite them clearly stating it was not a Disciplinary and I could not be accompanied. I have since been diagnosed with osteoarthritis in my knees.

I had an appeal/ grievance meeting today. It was decided at the appeal meeting that a follow up meeting would be held.

Would be grateful if anyone was able to give advice on whether or not I have been unfairly dismissed.

Thank You

Jarndyce

Lots of issues being confused here as they are happening in parallel. It sounds like you have been dismissed on capability grounds, and that had you not been dismissed you would have been transferred under TUPE to a new contractor. Perhaps we can park the transfer aspect for now. I don't think it is relevant to your main question, but then you don't give the date that the transfer was supposed to take effect.

Frankly I think you have been more than a little obtuse in your dealings with the company. They have clearly been seeking to establish your fitness for work since June and you have simply not co-operated with their attempts to engage with you. Your SSP was 2 working days late - hardly cause for serious complaint. (8-12 July was over a weekend).

I think therefore that the employer would have been within their rights to dismiss you had they followed a fair procedure. However, in failing to allow you to be accompanied, at least at the 19 July meeting (even though you didn't attend) , and proceeding to dismiss in your absence, they may have shot themselves in the foot.

It is not now clear where you stand - you say that it was decided at the appeal meeting that a "follow up meeting" would be held - I don't know what that means, or what the status of such a meeting would be.

You need to clarify that - do you remain dismissed? Presumably you do. In which case you may have a valid unfair dismissal claim. BUT - I would expect a Tribunal even if awarding in your favour for unfair dismissal, to reduce any compensation considerably under the Polkey rules - if not by 100% ie to zero - to reflect the contribution you made to your own dismissal.

So I suggest you clarify the status of this follow up meeting first, and we take it from there.

SarEl

I am afraid that this is one where legal advice is the only real answer. Even with this amount of detail it is hard to be certain. You see, I have your side of the story (which I am not disputing) - but theirs appears to be that they have attempted to speak to you, attempted to meet with you, and attempted to obtain medical reports - at least some of which appears to be true, and the rest of which, even if not true, appears to have some "evidence" behind it that it is. The truth of the matter is that if they have attempted to meet with you and if you have failed to co-operate, and if there is no prospect of a return to work, it may very well be fair-ish in law (there appear to be a few faults in the process, but as a small employer they might just get away with this, because even if they had not made those faults, the outcome was likley to be the same). To be honest only a legal assessment of the evidence could give you a real guess at your propsects for any claim.

SG41

Jarndyce wrote: »

Lots of issues being confused here as they are happening in parallel. It sounds like you have been dismissed on capability grounds, and that had you not been dismissed you would have been transferred under TUPE to a new contractor. Perhaps we can park the transfer aspect for now. I don't think it is relevant to your main question, but then you don't give the date that the transfer was supposed to take effect.

It said in the letter I received that there was not a final date for the transfer. My letter says it was decided at the meeting I did not attend that my employment was being terminated on the grounds of non-attendance. It doesn't state whether its non attendance at work or non-attendance at the meeting.

Frankly I think you have been more than a little obtuse in your dealings with the company. They have clearly been seeking to establish your fitness for work since June and you have simply not co-operated with their attempts to engage with you. Your SSP was 2 working days late - hardly cause for serious complaint. (8-12 July was over a weekend).

They did arrange two meetings which I was genuinely unable to attend. At that time I was struggling even to walk. Had they offered to meet at my house I would have been happy to meet with them.

My wages/ SSP are always paid by BACS. When my SSP was not paid in I was told by a manager in the company that the owner had asked for my SSP not to be paid and he would deal with me on his return to work. There was no date given and I have 2 small children, bills that were due to be paid from the bank that day. That is why I phoned ACAS.

I think therefore that the employer would have been within their rights to dismiss you had they followed a fair procedure. However, in failing to allow you to be accompanied, at least at the 19 July meeting (even though you didn't attend) , and proceeding to dismiss in your absence, they may have shot themselves in the foot.

It is not now clear where you stand - you say that it was decided at the appeal meeting that a "follow up meeting" would be held - I don't know what that means, or what the status of such a meeting would be.

The appeal meeting was chaired by the Manager who terminated my employment (although the appeal letter was sent to the owner). I had taken copies of all the documentation to the meeting. She did not have copies of the emails etc sent by the owner so didn't seem to know I hadn't received the consent to contact GP form. She took photocopies of the documents she didn't have. She said I would need to have another meeting with someone "further up the chain"

You need to clarify that - do you remain dismissed? Presumably you do. In which case you may have a valid unfair dismissal claim. BUT - I would expect a Tribunal even if awarding in your favour for unfair dismissal, to reduce any compensation considerably under the Polkey rules - if not by 100% ie to zero - to reflect the contribution you made to your own dismissal.

I am still dismissed yes

So I suggest you clarify the status of this follow up meeting first, and we take it from there.

The Manager at the meeting said I had told them on my application form that I had osteoarthritis. I said this wasn't possible as it was diagnosed only on 02/08/11. She then said it might have said joint pain but couldn't get me a copy of the application form. She then said I had failed to communicate with them. I gave her copies of my 2 emails and telephone call to the owner. I think the follow up meeting is because she hadn't been aware of them

Thank you.. really appreciate your help

SG41

Sorry think i've posted my reply wrong.. Just came on here today

SG41

SarEl wrote: »

I am afraid that this is one where legal advice is the only real answer. Even with this amount of detail it is hard to be certain. You see, I have your side of the story (which I am not disputing) - but theirs appears to be that they have attempted to speak to you, attempted to meet with you, and attempted to obtain medical reports - at least some of which appears to be true, and the rest of which, even if not true, appears to have some "evidence" behind it that it is. The truth of the matter is that if they have attempted to meet with you and if you have failed to co-operate, and if there is no prospect of a return to work, it may very well be fair-ish in law (there appear to be a few faults in the process, but as a small employer they might just get away with this, because even if they had not made those faults, the outcome was likley to be the same). To be honest only a legal assessment of the evidence could give you a real guess at your propsects for any claim.

We are unfortunately unable to afford legal advice, my partners earnings are just above the limit and I am very grateful for any advice given here. They did offer 2 meet on 2 occasions but I was genuinely too ill to attend. They never offered to meet at my house. I signed for only 2 letters sent recorded delivery to invite me to the meetings. They have over 100 employees. Since being diagnosed with OA I have took supplements, changed my diet, have the right medication and feel I will be fit to return to work. I have never been off sick before

Uncertain

SG41 wrote: »

We are unfortunately unable to afford legal advice, my partners earnings are just above the limit and I am very grateful for any advice given here. They did offer 2 meet on 2 occasions but I was genuinely too ill to attend. They never offered to meet at my house. I signed for only 2 letters sent recorded delivery to invite me to the meetings. They have over 100 employees. Since being diagnosed with OA I have took supplements, changed my diet, have the right medication and feel I will be fit to return to work. I have never been off sick before

Have you checked your house insurance carefully? A lot of policies provide legal cover and often people don't realise it.

Failing this is is often possible to get an initial consultation with a solicitor either free or at a substantially reduced rate to assess if you have a case.

Based on what you have posted here there is a realistic possibility that you do have a case worth pursuing.

It is also perfectly possible to "go it alone" with help and advice from forums such as this, the CAB etc.

Do beware that you have a strict three month period (less one day) in which to lodge a tribunal claim.

SarEl

SG41 wrote: »

We are unfortunately unable to afford legal advice, my partners earnings are just above the limit and I am very grateful for any advice given here. They did offer 2 meet on 2 occasions but I was genuinely too ill to attend. They never offered to meet at my house. I signed for only 2 letters sent recorded delivery to invite me to the meetings. They have over 100 employees. Since being diagnosed with OA I have took supplements, changed my diet, have the right medication and feel I will be fit to return to work. I have never been off sick before

There is also no win no fee - if there is a case worth pursuing they will take it. And 100 employees is actually a small employer! Whilst I agree that it can be done without a lawyer, I really think you should do everything you can to get some legal advice. I appreciate that you haven't been sick before - but you have now been off for about three months and they are claiming that you failed to attend meetings and failed to co-operate in them obtaining medical reports. And there really is some evidence of some of that, so a tribunal will have to balance that evidence in determining what has happened here.