Constructive dismissal due to disability, where can I get some free advice?

Lum

I don't want to post too much on a public forum, but I have reason to believe that my partner's employer are attempting constructive dismissal.

The short version is that they have made a significant reduction to a previous reasonable adjustment, supposedly on a trial basis, and 3 days later instigated disciplinary proceedings due to her failure to cope with the new regime.

The new regime is having serious negative effects on her health, so she has a choice of either comply with it and get dismissed on capability grounds, or not comply with it and get dismissed for that.

She works in a highly specialised industry where jobs are few and far between so we really need for her to hold onto this job. She is the main money earner in our household.

We can't really afford an expensive lawyer at this point. Where can I go for some advice? We are utterly screwed if she loses this job.

BobQ

Lum wrote: »

I don't want to post too much on a public forum, but I have reason to believe that my partner's employer are attempting constructive dismissal.

The short version is that they have made a significant reduction to a previous reasonable adjustment, supposedly on a trial basis, and 3 days later instigated disciplinary proceedings due to her failure to cope with the new regime.

The new regime is having serious negative effects on her health, so she has a choice of either comply with it and get dismissed on capability grounds, or not comply with it and get dismissed for that.

She works in a highly specialised industry where jobs are few and far between so we really need for her to hold onto this job. She is the main money earner in our household.

We can't really afford an expensive lawyer at this point. Where can I go for some advice? We are utterly screwed if she loses this job.

You might find you get more help on the Employment Threads but it does bridge the two.

To be clear an employer cannot constructively dismiss anyone. The individual can claim constructive dismissal but to do so they need to resign and then argue their case at a tribunal. See

http://www.direct.gov.uk/en/employment/redundancyandleavingyourjob/dismissal/dg_10026696

Constructive Dismissal requires the employer to have changed the employees actual or implicit contract of employment, without their agreement and in a way that forced them to resign.

The Equality Act makes it illegal to discriminate against a disabled person but you do not say how the person is disabled (which clearly could be anything from major to minor). See

http://www.direct.gov.uk/en/DisabledPeople/Employmentsupport/YourEmploymentRights/DG_4001071

The question is whether with the change they have made they are still making a reasonable adjustment. On whose say has the change been made. For example has a DSE assessment been revisited that concludes an alternative reasonable change is sufficient or have they ignored the problem that required the change? In short can they show the change is fair and reasonable and still amounts to a reasonable adjustment for the disability?

It is possible that the person does lack the capacity to do the job and that they are just following the process to demonstrate it. But they do need to be careful about breaching the law.

She should be made aware that she is legally entitled to be accompanied at any disciplinary hearing by a colleague or a trade union rep (if she has one).

If she is not a member of a trade union, I suggest she contacts ACAS and looks at their advice on www.acas.org.uk

Lum

Constructive dismissal may be the wrong term then. What is the correct term?

Basically she has fibromyalgia and a bunch of other physical disabilities which require her to use a wheelchair. She gets DLA at the higher rate for both care and mobility. She had previously been given a later start time due to the pain and difficulty of actually getting her body to move in the morning.

They are now claiming that this time is unmanageable and have cut it short by an hour, then 3 days into the new regime insitgated disciplinary proceedings for her having difficulty meeting the new time, even though 2 of those 3 days the lateness was only 5-10 minutes and were actually due to obstructions caused by the company such as their refusal to fit a door opener leaving her waiting for someone to bother letting her in.

She is suffering exponential levels of increased fatigue under this new start time, and if it continues then they are probably going to get her on capability, but for the last year and a half she has been fine, there has never been any question of her being able to do her job. Alternatively she continue to arrive at what is now considered to be late and they will get her on that.

After just one week of this, I have been having to push her wheelchair indoors in the morning, something that I have never had to do before. She uses a power assisted manual chair outdoors, though the wheels for this generally do not come inside the house except for charging as I struggle to lift them.

This is a large company under the definitions given by the companies act, EU legislation and HMRC.

cabbage

Sounds like they are no longer wanting to make reasonable adjustments. There may be a case for discrimination via an employment tribunal. Ask ACAS for their pre case conciliation team so that they can intervene between the two parties to get a resolution.

It will be worth speaking to citizens advice who may have an employment expert to give you free impartial advice or will know someone to help. At the moment your wife must feel like its an uphill struggle and the law favours the employers but this isn't the case.

It needs to be challenged!

Good luck to you both

BobQ

I think the point is that the firm are applying a normal disciplinary process that could lead to her dismissal on grounds of capacity to do the job. This does happen at times when the firm has done all it can to make reasonable adjustments and the individual is still unable to manage the job.

From what you say all they have done is change her hours of employment and this has caused difficulty. On the face of it many people can face a change in hours and this simply means getting up earlier. I can appreciate she has special difficulties but the question remains as to whe she cannot get up 60 minutes earlier, perhaps given more time for adjusting to such a change? Is it because she needs help that is not available that early?

Are they are making all the reasonable adjustments for her disability she needs? Are there other issues with her workstation once whe gets into the building or in reaching her desk? If so, as this is a large firm I suggest that she asks to see those responsible for Occupational Health and Safety at the workplace and see if they can mediate with her manager.

The only disability related matter you raise is causing her to be late because of problems accessing the building. If the firm are causing her to be late for work by not dealing with her disability, by considering accessibility to the place of work this is not making sufficient reasonable adjustment. This should be raised with the manager formally.

On the the face of it the idea that a large employer would fail to comply with H&S requirements or set out to discriminate on grounds of disability is surprising.

As I said before you may be better posting on the Employment forum where there are many people with expertise in employment law and heath and safety. Either way a call to ACAS might be worthwhile too.

mynameistallulah

cabbage wrote: »

Sounds like they are no longer wanting to make reasonable adjustments.

Or that they no longer deem the adjustment to be reasonable? You cannot make such a judgment without knowing their reason for changing the start time.

Lum

There has never been any issue with her ability to do the job, indeed she usually works unpaid overtime as the company is short staffed and there is always something that needs doing.

The problem is that the earlier start (and it is actually more like an hour and a half once increased traffic is taken into account) has an exponential effect on her fatigue levels. It is the equivalent of asking somebody without a chronic illness to come in 3 hours early.

She has gone from being fully capable of doing the job to, by a Friday afternoon struggling to comprehend speech, something that normally doesn't hit her until around about 11PM and even then only on a low spoons day. On a Friday morning I now have to push her chair around indoors, something I have never had to do before.

She has successfully argued against them including the access difficulties in their monitoring of her timekeeping, but have still argued that she has been a couple of minutes late and that this is enough for a formal warning/disciplinary. They went as far as checking CCTV! We are talking about less than 10 minutes here and the disciplinary hearing was announced after just 3 days of the new regime.

I genuinely believe that she is being set up to fail because somebody does not want the hassle of employing a disabled person.

I have already spoken to citizens advice... my large employer was happy to give me time off to speak to the CAB on her behalf as a carer! however the CAB do not have an employment specialist and could really only point me towards websites that I already have access too.

So far I have advised her that as long as her employer are behaving like this, she needs to get into the mentality of a clock watcher. If they are going to penalise her over a few minutes in the morning then they do not even get a few extra minutes in the evening. Arrive at your scheduled time and leave at your scheduled time in order to preserve as many spoons as possible for the rest of the week. I am not sure if this is the best approach but it is the only thing I can think of to try and preserve her health.

As for why she cannot get up earlier, the problem is that in the mornings the pain of just moving her limbs is at it's most severe. Her case is pretty much a textbook copy of the example given on page 15 of this PDF from the Equality and Human Rights Commission.

She has asked them why they do not consider the adjustment to be reasonable, and has so far only gotten a vague answer about not being able to have meetings first thing in the morning and not enough overlap with other members of the team. Some of the team have adjustments in the other direction but there is still a 5 1/2 hour overlap and her job includes a lot of work that can be done alone, for example there is a requirement to document everything that is done.

The really annoying part is that in the past they have asked her to come in early from time to time for early morning meetings... they don't happen that often, and she has done so. It still hurts like hell to do it but on a one-off basis she can cope. The cumulative effect of doing this every day is what is killing her.

Richie-from-the-Boro

HiYa Lum, sorry to hear about your partner, this issue of requiring companies to provide 'late starts' seems to be causing you both more trouble than its worth.

The problem for a company is when reasonably adjusting for your partner, means other staff and departments have to be made to make - what they perceive to be unreasonable adjustments made to them, to facilitate her needs.

Its a fine line isn't it ? at some point a company will come under so much pressure from other managers and individual members of the workforce they may need to review whether in the light of Para 2 above that adjustment is any longer reasonable. It becomes unreasonable when the pre-requisite organisational outcomes are put at risk by any team member who can not for whatever reason function as part of that team.

Certainly in the now immediate future your partner must be there at her workstation more than 5 minutes early, must leave more than 5 minutes late and must be seen or recorded to do so.

- If your partner [traffic] cant reliably be there 5 minutes early she should be there 15 minutes early and wait in the car park if necessary.
- If your partner can't start the journey earlier your partner should get out of bed earlier to compensate and start the journey earlier.
- Getting there early and if necessary getting up earlier will give your partner the short term protection from the 2nd written, and the final dismissal warning.

GlasweJen

Has your partner ever been in touch with access to work? They're job centre based and they can fit electric "push button" doors for employers with employees in a wheelchair. They also provide special desks, chairs, computer equipment etc and can give advice to their client if there's any work place problems related to disability.

If your wife's driving is being affected they may fund taxis for her to get to work on her worst days. You contact them through your local JCP, they get back quickly but the assessment and award can take ages (though they contact employers fairly quick so that might help).

Lum

^^^ The company have explicitly refused to have any dealings with access to work. I have no idea why.

Richie-from-the-Boro wrote: »

HiYa Lum, sorry to hear about your partner, this issue of requiring companies to provide 'late starts' seems to be causing you both more trouble than its worth.

My situation was solved amicably in the end and has no bearing on this thread. My boss has also never given me any hassle when I'm late because of problems my partner is having. I also managed to get them to take me off the methotrexate which has improved my susceptibility to illness somewhat. I'm now on a cocktail of mycophenylate, zafirlukast and promethazine which seems to do the trick without anything like the side effects. Just have to wait 4-10 years for my memory to recover.

Certainly in the now immediate future your partner must be there at her workstation more than 5 minutes early, must leave more than 5 minutes late and must be seen or recorded to do so.

- If your partner [traffic] cant reliably be there 5 minutes early she should be there 15 minutes early and wait in the car park if necessary.
- If your partner can't start the journey earlier your partner should get out of bed earlier to compensate and start the journey earlier.
- Getting there early and if necessary getting up earlier will give your partner the short term protection from the 2nd written, and the final dismissal warning.

It's easy to say "get up earlier" when you don't have ME/Fibro. Usually followed by "go to bed earlier". It just doesn't work like that for her, whether she goes to bed at 10PM or 4AM the result is largely the same, she simply cannot physically move in the morning, and that is assuming her five alarm clocks plus me even manage to wake her for long enough to get some painkillers down her neck in the hope that she will then possibly be able to move in 15 minutes time.

If we actually do manage to do what you are suggesting, the cumulative effect will leave her so ill by the end of the week that they're going to get her on capability grounds instead.

The bit that really gets me is they're requiring immediate compliance with the new rules with no leeway of even a few minutes, and after 3 days have started disciplinary proceedings. Doesn't this start to move away from "no longer reasonable" and into the territory of blatant victimisation? Bear in mind that she has a 45 minute commute here too.

Not that it matters as she is the main earner in our household and if they sack her we're completely screwed and would be bankrupt long before any tribunal happened.

The worst part is, I honestly thought we were sorted. My job ended up in such a way that I could balance my carer duties with my work. We got the DLA, we found a wheelchair accessible house which allowed my partner to be a lot more consistent, and still make it to the car even on bad ME days. We both had full-time employment who seemed fine with the hours we could do. I thought we could settle down, stop stressing so much and maybe start chipping away at some debts and perhaps actually start to deal with one of my medical conditions that the NHS doesn't help so much with. Perhaps I can even start focussing a little on my own career again! I even treated myself to a new phone (US import to save money and flashed to add GSM support)

But no, just as we think things are finally sorted, this happens. I just want to curl up somewhere and cry now. I really have had enough.

mynameistallulah

Richie's advice is spot on, albeit probably not what you want to hear. You appear to have reached stalemate, they have done what they deem to be reasonable, but you disagree. All I can suggest is to compromise - perhaps it would be reasonable to suspend any disciplinary action for a few weeks until she can get used to it?