Employment Tribunals

Emmzi

so
a) what do you mean "refused IHR?" Neither you or your doctor get to refuse it, it is not you decision to make, tell us more about that.
b) what was the actual wording of the reason for dismissal?
c) What was the result of the Oct 2011 medical? What reccomendations were made? That's the key one - that is the one at which the information the dismissal decision was based on would have been made. If it has anything that is vague about date for return to full duties, the decision your employer made WILL stand.

princessdon

So the last sick note submitted to your former employers was May 2011 when your sick pay ran out and at no other time did you submit a sick note to them at all?

Also when was the next sick note (if any) as you claimed ESA I assume there was one.

From an impartial POV - If you stopped submitting sick notes asked to return (normal phasing and reasonable adjustments) and they dismissed you on grounds if health BUT your GP confirmed fit then I would say with the right wording you have a very good chance of winning.

BUT - If you continued to supply sick notes and their medical/internal findings stated you are NOT fit to do that job and you promptly went onto JSA and obtained more sick notes stating unfit for work then this will go against you. As you say your aurgument is that you were fit for work (with reasonable adjustments), but to then claim ESA (ie unfit for any kind of work) dilutes the argument.

So from when your sick pay ended and your fit (limited work) was issued when did you next obtain a sick note, did you send any further to your employers, do they have records of this (if they have access to your GP records for disclosure) and as above what exactly was the finding of the company and the exact reason for dismissal

CheekyMonkey22

Right, found the relevant parts in the paperwork

Emmzi wrote: »

so
a) what do you mean "refused IHR?" Neither you or your doctor get to refuse it, it is not you decision to make, tell us more about that.

Following a medical, IHR was refused by an independent assessors as I failed to meet the criteria for ill health retirement. I did not appeal this decision.

Emmzi wrote: »

b) what was the actual wording of the reason for dismissal?

“Dismissed on grounds of capability due to unsatisfactory attendance”

when pushed for a better explanation, told:
“The reason for your dismissal is on grounds of capability due to unsatisfactory attendance.Capability, in law, is defined as meaning capability assessed by reference to skill, aptitude, health or any other physical or mental quality under the Employment Rights Act 1996. In your case, this means that due to your long term sickness absence, you have been incapable of performing your job.”

Emmzi wrote: »

so
c) What was the result of the Oct 2011 medical? What recomendations were made?

Effectively assessed as capable of returning to work immediately and performing a role within an normal office working environment. Nothing negative otherwise.

One of my arguments is they failed to consider all the available evidence.

wantsajob

If I understand correctly, they prevented you from returning to work - when you were able and willing to work, which they themselves stated after a medical - and then used your poor attendance as grounds for dismissal?

CheekyMonkey22

princessdon wrote: »

So the last sick note submitted to your former employers was May 2011 when your sick pay ran out and at no other time did you submit a sick note to them at all?

Yes, from what I recall. I did not send them any sick notes got for the purpose of claiming ESA as they had stopped paying me by this point. And they didn't ask for any.

princessdon wrote: »

Also when was the next sick note (if any) as you claimed ESA I assume there was one.

July-ish time when I applied and as required in the assessment phase.

princessdon wrote: »

BUT - If you continued to supply sick notes and their medical/internal findings stated you are NOT fit to do that job and you promptly went onto JSA and obtained more sick notes stating unfit for work then this will go against you.

This is no evidence that they received that I was unfit to return to work immediately. All the evidence (of different dates) says I was fit to work with reasonable adjustments.

princessdon wrote: »

As you say your aurgument is that you were fit for work (with reasonable adjustments), but to then claim ESA (ie unfit for any kind of work) dilutes the argument.

That's my only issue there. I can hope that they don't notice that slight contradiction. But ESA is a support to work benefit.

princessdon wrote: »

did you send any further to your employers, do they have records of this (if they have access to your GP records for disclosure)

No further sick notes were sent. If they request new access to my GP, I may refuse on the grounds that there is sufficient medical information in existence already AND I have already told them (if they care to look close enough at hearing transcripts) that I may currently claiming ESA. If the respondent rep understands the implications of this is not my look out.

Hope that is clearer.

CheekyMonkey22

wantsajob wrote: »

If I understand correctly, they prevented you from returning to work - when you were able and willing to work, which they themselves stated after a medical - and then used your poor attendance as grounds for dismissal?

Situation distilled down, yes.

Emmzi

CheekyMonkey22 wrote: »

Effectively assessed as capable of returning to work immediately and performing a role within an normal office working environment. Nothing negative otherwise.

One of my arguments is they failed to consider all the available evidence.

Ok, so when you say "effectively" that means there is more to the story. Please advise the *whole* reccomendations from the OH report and do not filter it to support your case.

What periods were not covered by a doctors note?

I am just poking holes to make sure your case is solid!

Emmzi

CheekyMonkey22 wrote: »

Situation distilled down, yes.

Don't distill it. The devil is *always* in the detail and I suspect wih you it is the "reasonable" in "reasonable adjustment."

princessdon

So you had sick notes (stating unfit for work) from July 2011 - but as they were not paying you sick pay, you didn't send it to your employers?

In other words you weren't fit to return but you think they don't know that?

marybelle01

If I may be blunt, it strikes me that you are being deliberately obtuse and vague in the information you are providing here simply to support your own view of things that happened and give people misleading impressions of your position. In which case you are wasting your time asking for advice here, and wasting everyone elses time trying to help you because any advice they give you is based on a limited and objective interpretation of the facts filtered through your twisting of the facts to fit the claim. A tribunal won't be this easily manipulated, so your best position here is to stop having people trying to drag facts out of you, tell the whole truth whether it supports your case or not, and stop beating around the bush. That way people will give you honest and good quality advice, whether it is advice you like or not, which will help you determine the best way forward and the best arguments to use if this goes to a tribunal.

There are indications of enough holes in your story to sink a fleet of battleships. You didn't provide the employer with sick notes but say they didn't ask for them - an employer doesn't need to ask for them, because sickness absence policies require you to provide them without being asked for them, whether or not you are being paid. Your comment "This is no evidence that they received that I was unfit to return to work immediately. All the evidence (of different dates) says I was fit to work with reasonable adjustments." is disingenous - if they recieved no evidence that you were unfit to work then you were fit to work and absent without leave. But you go on to say that in October 2011 you were "effectively assessed as capable of returning to work immediately and performing a role within an normal office working environment." - that means capable of returning to work without adjustments. So why didn't you return? Those are just a few of the holes - by no means all of them.

If you want to benefit from the very good advice available here from people like Emmzi, stop beating about the bush and/or telling them carefully distilled versions of the truth, because their advice is worse that useless if they are giving it based on inaccurate information.