Employment Tribunals

CheekyMonkey22

Whilst I appreciate everyone's comments, both positive and negative.
Wow, what a negative response. I am not deliberately 'beating around the bush', I am try to maintain my anonymity given this is an open forum, whilst giving an much relevant information as possible to get an impartial opinion. If I had given more specific information, in my opinion it would alter the context of what I said.

I clarify some more points have I have some more time as I'm off out now.

Emmzi

ok. I have tried my best. My top tip is see if a no win no fee solicitor will take you on and if you don't your case probably isn't that robust. You can't have total anonymity and good advice.

good luck!

marybelle01

CheekyMonkey22 wrote: »

Whilst I appreciate everyone's comments, both positive and negative.
Wow, what a negative response. I am not deliberately 'beating around the bush', I am try to maintain my anonymity given this is an open forum, whilst giving an much relevant information as possible to get an impartial opinion. If I had given more specific information, in my opinion it would alter the context of what I said.

I clarify some more points have I have some more time as I'm off out now.

And therein lies the problem. There's nothing negative in what I have said. It's the truth. Your story is full of holes and contradictions, and you don't preserve your anonimity by telling conflicting versions! You've alienated Emmzi now - and she was one of the few best chances you have on this site for good advice!

Hiccups_2

The procedure for dealing with employees who fail to provide evidence of their incapacity for work is unaffected by the introduction of the fit notes system. As with their predecessor the sick note, employers can require employees to provide a fit note after seven calendar days of sickness, to be eligible for statutory sick pay. Further, employees who fail to provide fit notes in accordance with their employer’s sickness absence reporting procedure may lose the right to occupational sick pay.
If an employee fails to provide a fit note, the employer should advise the employee that failure to provide a fit note without good reason could result in the loss of sick pay and the absence being treated as unauthorised. If the employee continues to fail to provide the required fit note, the employer should deal with the matter under its disciplinary procedure.

Surely, the sick/fit note thing is a bit of red herring, given that the employer took no action on this; the failure to provide a sick/fit note was not treated as an "unauthorised absence" nor was it referred to as a disciplinary matter.

The reason given for the OP's dismissal also clearly states the employer's belief that the OP was still incapacitated. The sick note is slightly irrelevant, UNLESS the OP's doctor issued a fit note recommending that the OP can return to work if X, Y and Z are in place. Even this is not a game changer as a lot of GPs don't get involved with making such recommendations.

I suspect the OP's case will rest on the consultation with OH (and any recommendations) and whether the adjustments being requested were reasonably practicable. Allowing time off for treatment being one such adjustment.

Hiccups_2

Emmzi wrote: »

My top tip is see if a no win no fee solicitor will take you on and if you don't your case probably isn't that robust.

For an employment tribunal? Costs are not usually recoverable, there is absolutely no incentive for a solicitor to take on an ET case, unless they were cutting their teeth and just wanted to gain some experience (i.e. students from a university or law centre) or it was a particularly high value claim (from which the solicitor could take a good slice).

For a no win no fee arrangement the solicitor would also weigh up how much effort would be involved against the likely amount they would be able to recover. If they decide it's not worth it, it doesn't mean the case doesn't have good prospect of success.

Emmzi

Hiccups wrote: »

For an employment tribunal? Costs are not usually recoverable, there is absolutely no incentive for a solicitor to take on an ET case, unless they were cutting their teeth and just wanted to gain some experience (i.e. students from a university or law centre) or it was a particularly high value claim (from which the solicitor could take a good slice).

For a no win no fee arrangement the solicitor would also weigh up how much effort would be involved against the likely amount they would be able to recover. If they decide it's not worth it, it doesn't mean the case doesn't have good prospect of success.

For disability discrimination which is what I *think* this is (but who can tell?) I'd say fairly high value. And OP does not seem to want to pay a lawyer. Nor does OP seem suited to the stress coming their way unassisted.

OTOH OP seems to be determined to do things their way regardless so I fully expect to be ignored anyway. So no odds overall.

marybelle01

Hiccups wrote: »

Surely, the sick/fit note thing is a bit of red herring, given that the employer took no action on this; the failure to provide a sick/fit note was not treated as an "unauthorised absence" nor was it referred to as a disciplinary matter.

The reason given for the OP's dismissal also clearly states the employer's belief that the OP was still incapacitated. The sick note is slightly irrelevant, UNLESS the OP's doctor issued a fit note recommending that the OP can return to work if X, Y and Z are in place. Even this is not a game changer as a lot of GPs don't get involved with making such recommendations.

I suspect the OP's case will rest on the consultation with OH (and any recommendations) and whether the adjustments being requested were reasonably practicable. Allowing time off for treatment being one such adjustment.

The point is that we don't know whether it is a red herring because the OP is giving us selective indormation. Nobody suggested that the employer dismissed for unauthorised absence - but we also don't know that wasn't one of the reasons why they took a dim view of the continued claimed incapacity. The OP has said they aren't inclined to provide any further access to medical records (good luck with that by the way - the tribunal can order discovery of any documents the employer asks for) which makes me wonder why - if they have nothing to hide why not give access? The point is that there are too many holes in the story we are getting - and if there's holes here then there's holes in the claim.

princessdon

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 (Dates are important for Tribunals, they, employers and society are naturally suspicious if the very same date a sick/fit note ends is the same day their pay runs out.) Many people return to work when not fit and this can cause a company problems further down the line. They have a duty to you as an employee and need to ensure you are in fact able to do the work SAFELY, hence an OH company review. This would have raised a flag questioning your actual fitness and given your GP said "partially fit to return" this gave them cause to review your fitness. That said they need to look at what is "reasonable".

Notionally July 2011, date was able to work again but can’t give a specific date was fit (Again you said a fit note was give, but by your own admission here it was July before you were able to work, was this FULL work no adjustments?)

July 2011 – Medical: Ill health retirement refused, explicitly stated my intention to return to work, advised of new medical required (Why an Ill Health Retirement if fit and able to work?, it's not normal procedure to ask for ill health retirement if being given the all clear to return to work in full and this is your wishes)

ADDS TO TIMELINE THAT GP ISSUED ANOTHER SICK NOTE
July-Oct – Minimal communication, limited to requests for consent, no discussion as to return or reasonable adjustments despite my prompting (Unacceptable, what did you do in this time, did you go to work, visit HR or was everything via email?) Ie what attempts did you make to resolve other than phone/email distance communications.
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 ClaimI 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. Yet you applied for ill heath retirement and had a sick note in July?
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.

marybelle01

Now I am even more confused... Who are "you"? Was this timeline posted by the OP - are you using two different ID's? Or is this your attempt to resolve the timeline issue?

princessdon

@Marybelle01 - Yes that was a timeline posted by OP and the blue are parts I am totally confused about!

I can't figure out why someone wishes to return to work as fit in May (with phasing etc), but then says it was July before they were fit, then asks for Medical Retirement, Then gets another sick note in July.

Sorry if I confused things just wanted to highlight areas that at the moment conflict