NI Civil service / disability / sickness absence / facing dismissal

Chris_NI

Hey folks

I am posting to see if I can gain any help with an issue I'm having with my employer, the Northern Ireland civil service.

Quick recap, I was off back in December 13 with my mental health condition. As I had a more or less mental break down my psychiatrist had me heavily medicated where I was sleeping 14 hours a day.

I returned work in early January 14. I was then issued with a written warning in March 14. I had asked that any sickness absence to do with my disability be disregarded for management attendance purposes but this was ignored. I appealed the issue of the written warning and the decision was upheld. I then contacted the equality commission NI and I'm in the process of taking my. Work up for disability discrimination over the written warning.

Due to the stress of all this and social stressors my mood and mental state greatly deteriated and once again I had more or less a mental breakdown/psychotic episode and again I'm off sick from work. My psychiatrist again is heavily medicating me and I'm on 10 tablets a day including anti psychotics, anti depressants, anti anxiety, beta blockers and a mood stabiliser.

I have been off sick from June 14. Today my line manager gave me a heads up that he was having to send me out a letter from attendance management saying more or less that if I don't return to work by a certain date that they will be starting proceedings for dismissal. Even though I recently seen the OHS who said I would be unfit for a further 6 weeks and my own GP has given me a sick line for 4 weeks and my psychiatrist has advised that I don't attend work until my mood is stabilised as I run the risk of being a danger to myself or others.

So my questions are this. Is this legal? Is it discrimination? Are they out to get me as I already have a tribunal in against them? Can I amend my tribunal claim to include the threatening and bullying behavior by my employer? I'm just stuck to what I'm meant to do next and any help or advice would be greatly appreciated

Thanks

Chris

Undervalued

Chris_NI wrote: »

So my questions are this. Is this legal?

Most likely yes - sorry!

Your disability (if indeed you have one for employment law purposes) only entitles you to "reasonable adjustments". It does not give you complete protection against dismissal for health reasons by any means.

If it is established that you have a disability (mental issues can be but it is not automatic) then we come on to what are reasonable adjustments. Ultimately only a tribunal can decide but it may well not be much more than moving the normal trigger points for attendance warnings back one step. They could also include making small (i.e reasonable) changes to your working environment and / or hours if that helped a return to work.

Takeaway_Addict

Most people believe that being covered by the equality act 2010 gives them a bullet proof vest against any action being taken in employment. As Undervalued has pointed out the employer only has to take reasonable adjustments which means that they might possibly disregard your time off due to the mental health issues but there is no legal option to force them to.

What is often likely to happen is that the trigger points used to take action against you are increased to allow an extra amount of leeway for illnesses covered by the equality act.

Very few employers would completely disregard time off due to an illness covered by the equality act.

So yes it can be legal and from what you have said there is little to indicate bullying but more the fact the employer is following procedures (that most likely are in your handbook)

Takeaway_Addict

Chris_NI wrote: »

Hey folks

I am posting to see if I can gain any help with an issue I'm having with my employer, the Northern Ireland civil service.

Quick recap, I was off back in December 13 with my mental health condition. As I had a more or less mental break down my psychiatrist had me heavily medicated where I was sleeping 14 hours a day.

I returned work in early January 14. I was then issued with a written warning in March 14. I had asked that any sickness absence to do with my disability be disregarded for management attendance purposes but this was ignored. I appealed the issue of the written warning and the decision was upheld. I then contacted the equality commission NI and I'm in the process of taking my. Work up for disability discrimination over the written warning.

Due to the stress of all this and social stressors my mood and mental state greatly deteriated and once again I had more or less a mental breakdown/psychotic episode and again I'm off sick from work. My psychiatrist again is heavily medicating me and I'm on 10 tablets a day including anti psychotics, anti depressants, anti anxiety, beta blockers and a mood stabiliser.

I have been off sick from June 14. Today my line manager gave me a heads up that he was having to send me out a letter from attendance management saying more or less that if I don't return to work by a certain date that they will be starting proceedings for dismissal. Even though I recently seen the OHS who said I would be unfit for a further 6 weeks and my own GP has given me a sick line for 4 weeks and my psychiatrist has advised that I don't attend work until my mood is stabilised as I run the risk of being a danger to myself or others.

So my questions are this. Is this legal? Is it discrimination? Are they out to get me as I already have a tribunal in against them? Can I amend my tribunal claim to include the threatening and bullying behavior by my employer? I'm just stuck to what I'm meant to do next and any help or advice would be greatly appreciated

Thanks

Chris

Did the employers make any reasonable adjustments on your management attendance compared to if an illness was not covered by the equality act for the December illness?

Another_not_new_user

You would have been well advised to take detailed legal advice before starting a tribunal claim over a warning. As you have already been advised, the Equality Act gives you no guarantee protections, and adjusting trigger point is only a possible adjustment that an employer may (or may not) make. The fact is that you asked and they refused - they are within their rights to do so. Whether that constitutes discrimination is debateable and yes, you may win a claim - and you also may not.


But what has been the result of this? A warning is a warning - don't hit the trigger points again and it falls off your record. No big deal unless you are thinking you will have a lot of time off sick, and if you do, no law in the land is going to save you, disabled or not. Instead, as you have found out, taking your employer to an employment tribunal is immensely stressful, you have had more time off sick (and will probably have yet more before this has finished) which means that you are effectively handing your employer the ammunition to dismiss for capability on the grounds of sickness absence. Now, since you cannot go back to work because of your condition (if you have been deemed a potential danger to yourself and others then no employer would allow you to return until that situation is resolved) you have put yourself in the very situation that you didn't want to be in.


Unfortunately, I cannot now see a win. Even if your claim for discrimination wins, you now have had even more substantial periods off sick - a win would be pyrrhic because the employer can still dismiss on the basis of the additional periods of sickness, and no amount of "reasonable adjustment" (which would probably only be a matter of days) will reduce your sickness to an acceptable level which avoids this outcome. And even more unfortunately, your action gives the employer a motivation to dismiss which is defensible - they will dismiss on sickness absence and not for your claim against them. If they are "out to get you" then they have got you. And without any threats or bullying. They are simply following their laid down procedure as the law requires them to. And treating you "equally" because the procedure applies to everyone.


If you are in a union, you need to see whether they can see any options here, but at this stage, the only remaining option may be a settlement agreement, if the employer is minded to agree. But that won't change anything about your position, and you have probably lost your job. Either they will insist on resignation as part of the settlement, or they will continue with the capability process and dismiss for sickness absence. What is highly unlikely is that they will settle your immediate claim and back off entirely. Which, in fact, they cannot do - if they were to so substantially vary from their sickness absence policy then the entire policy would be deemed unenforceable in law for any employee, and they are not about to let that happen. I am sorry but I simply cannot think of an option that results in your keeping your job at this stage.

ohreally

Are you a PCS member?

Is your mental health deterioration due to your work environment or something else?

Undervalued

ohreally wrote: »

Is your mental health deterioration due to your work environment or something else?

Even if it is (and that is something that would be very hard to prove) it makes little or no difference to the employment situation.

If it could somehow be proved then it would of course open the way to a personal injury claim. In the unlikely event that succeeded then any compensation awarded should take account of the loss of job.

Occasional cases of this type are successful and sometimes the payouts can be headline grabbing. However, it will be an enormous uphill battle.