Employment Tribunals

Mara69

CheekyMonkey22 wrote: »

I am fit to work, and willing to work.

So why are you claiming ESA and not JSA?

wantsajob

Mara69 wrote: »

So why are you claiming ESA and not JSA?

I hate it when people make this assumption. If you are fit and able to work, yet have a disability which means employers will always reject you offhand, selecting an applicant without that disability instead - are you really "able to work"? The choice on ability to work is ultimately made by employers.

Mara69

wantsajob wrote: »

I hate it when people make this assumption.

I've made no assumption. The OP has asserted that he is fit enough - and willing enough - to work. Therefore, he should be claiming JSA.

I don't think it is going to help his claim against his employers as they may claim that he wasn't fit to work at all.

Hiccups_2

Mara69 wrote: »

I've made no assumption. The OP has asserted that he is fit enough - and willing enough - to work. Therefore, he should be claiming JSA.

I don't think it is going to help his claim against his employers as they may claim that he wasn't fit to work at all.

I believe the OP's claim actually relates to reasonable adjustments. The OP would have been fit to work IF reasonable adjustments had been made.

The OP was waiting for their employer to make those adjustments so they could return to work and was signed off sick in the meantime. When the employer stopped paying sick pay (the OP says he/she went 7 months without pay), he/she would have had to claim ESA (continuation of sick leave) rather than JSA as the OP still had a job and was not looking for another.

I personally don't see a problem with claiming ESA instead of JSA in this case, as the OP is still in the process of undergoing surgery and would realistically not be fit for work. However, I do see a slight problem with the fact that the OP is volunteering. Volunteering is not "mitigating" your loss because it is unpaid, unless you are doing it to improve your job prospects? The tribunal might question why the time spent volunteering wasn't spent more productively in looking for paid work that would work around the OP's disability. Just something for you to think about OP.

CheekyMonkey22

Hiccups - Nicely summarised and spot on.

I was not available to work as I had a job already, just wasn't attending at their (implied) request. I'd never returned after my accident. And I wasn't in the position to have the stress of being interviewed for another job.

Employment and Support Allowance is to support me in getting back to work.

Good point with the volunteering. Whilst it doesn't directly make me any more employable, it does demonstrate some useful skills since sustaining my injuries and that I've not exclusively festered.

I just wish they had dismissed me sooner, if that's what they were going to do in any case, so I could have gone back to Uni last year.

Emmzi

ok. we asked for proper info so we could help and you don't seem prepared to put the effort in to do a timeline. I suggest paying a solicitor who will be happy to charge you to work it out!

CheekyMonkey22

I had my CMD today and was writing up my notes for it while was still fresh. I will get to a timeline shortly.

CheekyMonkey22

SUMMARY

For the sake of clarity despite my reservations about being too identifiable (figure the dark side have all the details anyway), here is the timeline:
May 2010 – Accident, start of sick pay
Dec 2010 – Left hospital
May 2011 – GP fit note specifying phased return to work
May 2011 - date sick pay ran out
Notionally July 2011, date was able to work again but can’t give a specific date was fit
July 2011 – Medical: Ill health retirement refused, explicitly stated my intention to return to work, advised of new medical required
July-Oct – Minimal communication, limited to requests for consent, no discussion as to return or reasonable adjustments despite my prompting
Oct 2011 – Medical: Finally referred by OH for new medical
Nov 2011 – Capability hearing, first mention of adjustments
Nov 2011 – Dismissed, Appealed in writing
Jan 2012 – Appeal hearing, decision upheld
March 2012 – ET: Submitted ET1
May 2012 – ET3 received
Today – CMD
May 2012 – Surgery imminently, moved from July 2012

(Potentially worth noting that I am a little light on sick/fit notes to cover the whole period. And I do appreciate that it occurs over 1.5 years – however this delay was not of my doing)


ET Claim I am claiming for:
A. Unfair dismissal
B. Failure to make reasonable adjustments
C. Disability discrimination – respondent has conceded on my physical disability, but make no admissions as to any impact on my mental health.
D. Potentially might amend my claim to include harassment, due to HR’s behaviour in the investigation – I’m undecided yet

Respondents argument
"genuinely" thought
1. not be able to return to work within a reasonable time frame
2. not maintain sufficient attendance.
[FONT=&quot]

[/FONT] My arguments
1. Available for work from an undetermined date before July 2011, but not able to do so due to employer. I was dismissed having never returned to work after my accident
2. Have all the relevant capabilities to continue working in my previous role. Despite my disabilities, I can type, use a telephone, think etc..
3. [FONT=&quot]Failure to consider all available medical information - proper procedure not followed
[/FONT] [FONT=&quot]4. Long drawn out ‘investigation’ resulting in me being unpaid for 7 months.
[/FONT] 5. No assessment as to reasonable adjustments - no contact with my employers Occupational Health. They did however write to my specialists and GP.
6. But with reasonable adjustments, work situation can accommodate and encourages/in normal working processes, flexi, working from home etc.
7. No evidence that I wouldn’t be able to maintain sufficient attendance

I wanted to return to work part-time due to the time I’ve had off and as part of a phased return to work. I had been with the same employer for 5 years.

I really do appreciate people taking the time to help me. Thank you.

Confuseddot

Just wanted to say good luck and let us know how you get on !

I am currently waiting to hear if my appeal has been successful before possibly going down a similar route so would be very interested in the outcome.

CheekyMonkey22

Confuseddot wrote: »

Just wanted to say good luck and let us know how you get on !

I am currently waiting to hear if my appeal has been successful before possibly going down a similar route so would be very interested in the outcome.

Thanks. I would recommend collecting as much evidence as you can if this is feasible. Note strict time scales if this is a route you are going to take. As a first reference have a look at Cunningham and Reed, Employment tribunal claims: tactics and precedents. About £30 on Amazon. I've collected loads of other resources, which I'll sort out once I've got some time.

I certainly found drafting the equivalent of my witness statement as a good way to clarify some of my thoughts and the position I am going to take. And doing it in advance meant I could do it in slow time and do plenty of research along the way to look at precedents.

Whilst I'm not surprised at the amount of work required, it is quite a commitment. And I am in a 'fortunate' position as I have to time.

Good luck either way.