unfair dismissal offer

zzzLazyDaisy

I should say that I agree with SarEl in that knowledge (or deemed knowledge) by the employer of disability is essential if you are going to win this case.

I also agree that the time-line is crucial.

However, in my experience, where an employer has failed to follow proper procedures, then he cannot rely on that failure to argue that he did not know about the disability.

Without full knowledge of the facts of your case we can only speculate (and that is dangerous). But *IF* the time line between dismissal and diagnosis is short and/or OH was already undergoing tests for suspected kidney failure at the time of dismissal, then I believe you have a reasonable argument that he would have known had he followed procedures. So, for example, if he had more than one year's service, the employer should have at least had a meeting with your OH and given him a fair opportunity to explain why he was off sick, what his medical advice was at the time, how long he was likely to be off sick etc. A prudent employer would also have obtained a medical report at that stage before taking the decision to dismiss. IF that report would have disclosed the kidney failure, or at least that it was suspected and tests were being conducted to confirm this, then the employer will be deemed to have known about this.

Similarly, if OH had a history of sickness absences prior to the episode that resulted in his dismissal, the employer would be expected to ascertain whether there was an underlying medical condition which might amount to a disability, before taking the decision to dismiss.

On the other hand, if OH was dismissed at a time when no-one (not even his medical advisers) could have known that he had a condition amounting to a disability, then even if the employer had carried out proper procedures, he would still not have known.

So the time line is very important.

On a separate note - Discrimination law is highly specialised and most CAB advisers are likely to be out of their depth very quickly. If this claim continues to run, it might be worth asking your CAB adviser to refer you to FRU - the barrister's free representation unit. (I am assuming FRU is still in existence, perhaps SarEL can confirm this?)

Martra_27

Thanks again for your input my husband was diagnosed with pkd three years ago he had told his employer person to person .We have a case of no he didn't yes we did he says no we say yes we did tell him and his wife who by the way is also a company director .Hubby even stated where and when he told them as part of the evidence. Its a case of his word against ours there .He has been under the kidney specialist since diagnosis and monitored they have said the extra strain and demand of the manual job exacerbated his condition resulting in having to take sick leave at that time.

SarEl

zzzLazyDaisy wrote: »

I should say that I agree with SarEl in that knowledge (or deemed knowledge) by the employer of disability is essential if you are going to win this case.

I also agree that the time-line is crucial.

However, in my experience, where an employer has failed to follow proper procedures, then he cannot rely on that failure to argue that he did not know about the disability.

Without full knowledge of the facts of your case we can only speculate (and that is dangerous). But *IF* the time line between dismissal and diagnosis is short and/or OH was already undergoing tests for suspected kidney failure at the time of dismissal, then I believe you have a reasonable argument that he would have known had he followed procedures. So, for example, if he had more than one year's service, the employer should have at least had a meeting with your OH and given him a fair opportunity to explain why he was off sick, what his medical advice was at the time, how long he was likely to be off sick etc. A prudent employer would also have obtained a medical report at that stage before taking the decision to dismiss. IF that report would have disclosed the kidney failure, or at least that it was suspected and tests were being conducted to confirm this, then the employer will be deemed to have known about this.

Similarly, if OH had a history of sickness absences prior to the episode that resulted in his dismissal, the employer would be expected to ascertain whether there was an underlying medical condition which might amount to a disability, before taking the decision to dismiss.

On the other hand, if OH was dismissed at a time when no-one (not even his medical advisers) could have known that he had a condition amounting to a disability, then even if the employer had carried out proper procedures, he would still not have known.

So the time line is very important.

On a separate note - Discrimination law is highly specialised and most CAB advisers are likely to be out of their depth very quickly. If this claim continues to run, it might be worth asking your CAB adviser to refer you to FRU - the barrister's free representation unit. (I am assuming FRU is still in existence, perhaps SarEL can confirm this?)

Yes - we agree of this. I just wanted to be sure that the OP was aware. The timescales, any sickness policy, etc are all crucial to the timeline so it is impossible for us to say based on information you could provide here.

Yes there is still a FRU - but it is very hard to get a case accepted because the demand is too great. Given the timescales, and the fact that I am not sure that the case is overly complex - we are guessing at the details and a lawyer wouldn't need to, so it shouldn't take much to assess this specific angle - a good first step would be to ask the CAB advisor (who actually appears to be quite good - and that is highly unusual for this level of case) if they have a referral panel. A number of solicitors and barristers volunteer for free advice sessions for slightly more complex matters - and employment lawyers are commonly amongst them, so the resource you need may already be there.

zzzLazyDaisy

Martra_27 wrote: »

Thanks again for your input my husband was diagnosed with pkd three years ago he had told his employer person to person .We have a case of no he didn't yes we did he says no we say yes we did tell him and his wife who by the way is also a company director .Hubby even stated where and when he told them as part of the evidence. Its a case of his word against ours there .He has been under the kidney specialist since diagnosis and monitored they have said the extra strain and demand of the manual job exacerbated his condition resulting in having to take sick leave at that time.

Okay, the issue of we told him/no they didn't is a matter of evidence for the tribunal - that is to say it just depends on who the tribunal judge believes.

But the fact remains that IF the employer had followed proper procedures, including having a meeting with OH, he would have been told about the reason for the absence, and should then have obtained a medical report before deciding to dismiss. It seems likely that had he done this, he would have had enough information about the condition to be put on notice that this may amount to a disability and to make further investigations before dismissing him. He cannot simply rely on his own inaction, to justify him not knowing about the condition.

Again, that is a lot of IFs, and really only someone with access to all the facts can guide you on the best way forward.

getmore4less

Anything on any sick note or requests for time off since he told the employer 3 yeas ago.

Martra_27

After taking in your comments we deceided to contact our cab rep and give our own offer, return to light duties and full reimbursement of wages or we will carry on. The cab said those requests where perfectly reasonable and she put it forward to him we are awaiting his response. Not expecting him to agree by the way

zzzLazyDaisy

Good Luck! And let us know how you get on.

Daisy