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

Richie-from-the-Boro

Lum,

- """It's easy to say "get up earlier" """ its easier than not needing to get up at all, because there is no job
- """by the end of the week that they're going to get her""", the alternative might be because there is no job
- """blatant victimisation""", no I don't think so, its not unreasonable given the extra leeway of 60 extra minutes that the second privileged target time is met
- """main earner in our household""", irrelevant to the issue here, but yes not getting there on time might quickly mean no job and no income

Again the above sounds as if I'm unsympathetic, I'm not, you and your partner are not special, you are just disabled - no more no less than the other millions of disabled. All the disabled working or not have variously many painful and difficult decisions to make on an hourly basis - its just something we have to 'get on with'.

You and your partner should stop floundering around looking for legal 'cop outs'. As difficult and painful as it is it comes down to acknowledging that you have already garnered the twin luxury's of (1) one hour extra in bed and (2) avoiding the normal everyday rush hour everyone in the nation faces. All you are required to do is get there on time, one hour late.

- """if they sack her we're completely screwed""", that's my point - attend to what needs to be done now, immediate, put your available energies into :

- 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.

-"""requiring immediate compliance""" means just that, comply or else, defending yourselves / home / income / cars & toys etc just comes down to getting to work on time - it really is not a big ask or a big expectation for any employer. Further I fail to see how even a good 'welfri' could make a case against an employer on the grounds you give, and I'm concerned that unless you 'get~a~grip' an ET is where you'll be heading and quickly.

Lum

Ok a couple of points..

It's dropped from 90 minutes extra to 30 minutes extra, with absolutely no adjustment period allowed. I would agree with the suggestion that suspending disciplinary action for a few weeks would be reasonable but they have flat out refused to do this.

Apart from the very first day where she forgot to take into account increased traffic levels as 50% of her commute is now within rush hour traffic, we are talking about lateness of 5-10 minutes maximum.

They have already told her that she has a Bradford factor score that puts her firmly in the "recommend termination" bracket and are fully aware that this change is going to make her conditions worse.

Saying "just get out of bed earlier every day" to someone with chronic fibromyalgia is like saying "just walk up those 6 flights of stairs every day" to a paraplegic.

Believe me I am doing everything I can to ensure she makes it on time, and to look after her in the evenings and weekends, as well as trying to find alternative jobs in her area of speciality. I'm also making sure she leaves on time in order to preserve a few fractions of a spoon that way, but something is going to break.

I have no idea what a welfri or an ET is, so I can't address those points sorry.

The real issue though.. There will be no job either way. This new start time is causing her condition to worsen to the point that towards the end of the week she is struggling to comprehend human speech during office hours. They are going to use this to get rid of her on capability grounds if she does manage to make the start times.

So the choice is to have no job on the grounds of lateness, or no job on the grounds of capability. This is why I am looking for help.

Richie-from-the-Boro

A Welfri is a professional legal specialist working in welfare or employment law up to and including UT levels in a tribunal, finding a good one is like finding hen's teeth. An [ET] Employment Tribunal sounds like your next stage by the sound of it, and where you will need the services of a Welfri specialising in employment law. However you are not at that point yet, but bleating about """50% of her commute is now within rush hour""" and """lateness of 5-10 minutes maximum""" when there is no maximum lateness - its just on time - or late & sanctioned.

At the end of the day, start half an hour earlier and without fail get there early or else, as difficult as that is it can be done, has been done before for meetings, and is a cheap price to pay. There is no help available Lum, you partner is in the gun-sight of a department manager with the support of Occy health / personnel / HRM / and company legal team, and taking you at your word that its lateness only, and no a host of other cumulative absences etc you don't have to do much to survive other than start a half an hour earlier.

NOTE :

A Bradford factor is a common daily use term in [HRM] Human Resource Management / Occy Health / and uses a well tried Bradford Formula for reducing absenteeism and lateness. B equals S squared multiplied by D.

D is the total number of individual days your partner was absent in a given period
S is the total number of spells [instances] of absence of an individual over a set period
B is the Bradford Factor score

Sorry I can't be more conciliatory Lum, I wish you both well.

HB58

Have you spoken to anyone at ACAS?

System

You say

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.

But surely, whether she gets up at 5, 6, 7 or 8 o'clock nothing will change. The pain will still be severe as she starts to move her limbs?

Or am I missing something?

colin13

GET ATOS INVOLVED,they will say ur fit to work :lol ,sorry,but after watching tv last nite,that just came to me

Lum

HB58 wrote: »

Have you spoken to anyone at ACAS?

ACAS were not much help.. nobody will be drawn on what is "reasonable" so it's basically down to the employer to decide and a tribunal to confirm or refute.

!!!!!! wrote: »

You say But surely, whether she gets up at 5, 6, 7 or 8 o'clock nothing will change. The pain will still be severe as she starts to move her limbs?

Earlier you go the worse it gets. Also the relationship between waking time and how early the cognitive impairements of Fibro kick in is exponential. For example a 9AM start may result in losing the ability to form or understand spoken words by 10PM, an 8AM start results in that happening by 8PM. 7AM which we're now on means that this is starting to kick in at 6PM which is during working hours. This has not previously been the case. It's also cumulative during the week now where it previously was not.

This is part of the reason why I got a new phone, so that we can still communicate, via text based means, in the evenings from anywhere in the house. Though I will freely admit that, given I finally believed everything was settled, it was a bit of a luxury as well. Means we can still talk without being sat at our computers.

Edit: I guess it's better to be dismissed on capability grounds than on disciplinary grounds?

mynameistallulah

No one can tell you what is reasonable - you can get examples from case law and the EqAct guidance, but because each individual and each organisation is unique, they will not necessarily apply to your situation.

I have cognitive problems, and they get progressively worse as I tire. I mitigate these are much as possible by adapting my (normally very rigid) routine according to what I have to do that week. Whilst I am not suggesting that my condition is as severe as your partners, the same principle applies.

When does she have the disciplinary meeting? Is she taking someone with her? I would approach it that you (she) understand that they no longer feel the different starting time is a reasonable adjustment, and you are willing to give the new hours a go, would they consider a short transition period whilst she gets used to the new hours? Perhaps they could meet again after a specified period to see if the new arrangement is working?

Lum

The disciplinary hearing has been and gone, resulting in a formal warning. They instigated disciplinary proceedings after just 3 days of the new hours. They have refused to allow any transition period.

She has attempted to meet the new hours and is currently doing so, but the effect it is having on her ability to function is severe, despite me giving all the assistance and support I am able to give, to the detriment of my own health.

mynameistallulah

Lum wrote: »

The disciplinary hearing has been and gone, resulting in a formal warning. They instigated disciplinary proceedings after just 3 days of the new hours. They have refused to allow any transition period.

She has attempted to meet the new hours and is currently doing so, but the effect it is having on her ability to function is severe, despite me giving all the assistance and support I am able to give, to the detriment of my own health.

Was she given the opportunity to take someone with her to the meeting?

Assuming she is still within the appeal period, I would appeal on the grounds that it would (arguably) be reasonable to allow a transition period.