Dismissed when waiting for surgery

Detroit

Apologies for the slight tangent, but I'd like to clarify some points about CAB, as I feel the comments about 'lay people with limited training' could unnecessarily deter someone from using the service and receiving valuable help.

While the majority of advisers one sees initially at CAB are unpaid volunteers, many of these are retired from legal and other related professions.
Others, as pointed out above, are recent law graduates.
All receive training, and the advice they provide is based in an extensive information system, checked by paid supervisors and subject to national audit.

Although every office is different, some offer employment advice services delivered by paid staff and highly trained volunteers, who can take employment cases up to tribunal representation.

Others have partnership arrangements with pro bono solicitors and voluntary sector employment specialists and can refer people for free specialist help.

All services are free, so those using them have nothing to lose by seeking their assistance. If the case is beyond their remit or expertise they will say so and help find the person find alternative help.

Undervalued

DomRavioli wrote: »

Reasonable adjustments can be ignored if they put the business at detriment (and they can prove as such), which in a lot of cases, such as reduced hours or expensive equipment, they are provable. They are more guidelines, they are not legally binding and as such, they can be ignored but only on very specific grounds.

The point I was making is that if an employee is "only" sick and not disabled then the employer can refuse to make any adjustments at all with no recourse.

However if the employee is disabled the the firm is required by law to make "reasonable adjustments". Yes they can argue that a particular adjustment is not reasonable (too expensive or whatever) but ultimately only a tribunal can decide what is reasonable. If the employer gets this wrong it can prove expensive in more extreme cases as there is no upper limit on what can be awarded.

sangie595

If it helps any, Menieres Disease is progressive and incurable (currently). In some cases, it can be managed, in severe cases it can be treated - but it still exists, and impacts on day to day living are reduced rather than eliminated. For these purposes, even a mild case would be akin to diabetes - a disability which can be managed, possibly with no impact on the working environment, but still a disability. A serious case - and surgery only ever get considered in serious cases, would quite certainly be a disability in law. It is not a sickness, it is a disability. And quite a rare one. And whilst it is true that only a tribunal can make a final decision on this matter, I have absolute certainty what that decision would be.

On the other hand, that does not mean that someone with this disability can be reasonably adjusted for in the workplace, hence my asking exactly what the employers argument is about the adjustments they cannot make which have led to dismissal.

pioneer22

You will be surprised at how much an employer would have to go for an adjustment to be reasonable. For example I have seen cases of employers providing someone to sign full time for them.

This doesn't seem right, the dismissal and the accompanying disciplinary would put your husband at a disadvantage. This is the "act" therefore breaching the EA.

It would be a reasonable adjustment to hold off the sickness/capability process until your husband is fit to return to work with adjustments. His time off work is a direct complication from his disability.

Tricky, could be a claim but best get legal advice. Have you looked into going down the appeal route? Or looked at a tribunal? Be quick you have 3 months. Links here

https://www.hesa.ac.uk/dox/manual_documents/ea-guide.pdf?v=

Good luck.

pioneer22

http://www.dls.org.uk/Pages/Advice/Factsheet/employment/Employment%20Law%20-%20Disability%20and%20Sickness%20absence%20-%20March%202015.pdf

sangie595

pioneer22 wrote: »

You will be surprised at how much an employer would have to go for an adjustment to be reasonable. For example I have seen cases of employers providing someone to sign full time for them.

This doesn't seem right, the dismissal and the accompanying disciplinary would put your husband at a disadvantage. This is the "act" therefore breaching the EA.

It would be a reasonable adjustment to hold off the sickness/capability process until your husband is fit to return to work with adjustments. His time off work is a direct complication from his disability.

Tricky, could be a claim but best get legal advice. Have you threatened with a tribunal or a COT3? Be quick you have 3 months. Links here

https://www.hesa.ac.uk/dox/manual_documents/ea-guide.pdf?v=

Good luck.

And you would be surprised how far an employer doesn't have to go! You cannot therefore, confidently exclaim that this dismissal is an act breaching the Equality Act - there simply isn't enough information here to make even a best guess, and that by people who have extensive experience of matters of employment law. Which you clearly do not because nobody in their right mind threatens a tribunal - you either do it or you don't. And you cannot threaten anyone with a COT3, because a COT 3 is nothing more than the form of legal agreement used by ACAS to record a settlement agreement!

With the exception, possibly, of some of the very largest employers, the provision of a signer full-time would not only be unreasonable, for most employers it would be impossible. Have you any idea what a full-time signer costs? We regularly use signers for our meetings, and for just two hour meetings it requires two signers for a single person - signing is an exhausting occupation, and much more complex a task than simply holding a conversation with someone. What is far more likely is that you may have seen either a provision under the Access to Work scheme, a government led scheme which used to be much more generous in supporting employees to remain in work than it now is; or someone employed out of a personal budget by the employee themselves.

As someone else has pointed out, albeit I do not agree with the way in which they expressed it, for someone who has already been off work for several months, and will be off for several more, it is not a reasonable adjustment to delay a capability or capacity hearing until they return from surgery. Nobody would expect that of even the largest employers. The question as to this is one of process, not of timing. Employers cannot be expected to carry people on sickness leave for lengthy periods of time.

And they OP does not have three months. They have three months less a day, which is a critical distinction, to make a claim to an employment tribunal.

pioneer22

sangie595 wrote: »

And you would be surprised how far an employer doesn't have to go! You cannot therefore, confidently exclaim that this dismissal is an act breaching the Equality Act - there simply isn't enough information here to make even a best guess, and that by people who have extensive experience of matters of employment law. Which you clearly do not because nobody in their right mind threatens a tribunal - you either do it or you don't. And you cannot threaten anyone with a COT3, because a COT 3 is nothing more than the form of legal agreement used by ACAS to record a settlement agreement!

With the exception, possibly, of some of the very largest employers, the provision of a signer full-time would not only be unreasonable, for most employers it would be impossible. Have you any idea what a full-time signer costs? We regularly use signers for our meetings, and for just two hour meetings it requires two signers for a single person - signing is an exhausting occupation, and much more complex a task than simply holding a conversation with someone. What is far more likely is that you may have seen either a provision under the Access to Work scheme, a government led scheme which used to be much more generous in supporting employees to remain in work than it now is; or someone employed out of a personal budget by the employee themselves.

As someone else has pointed out, albeit I do not agree with the way in which they expressed it, for someone who has already been off work for several months, and will be off for several more, it is not a reasonable adjustment to delay a capability or capacity hearing until they return from surgery. Nobody would expect that of even the largest employers. The question as to this is one of process, not of timing. Employers cannot be expected to carry people on sickness leave for lengthy periods of time.

And they OP does not have three months. They have three months less a day, which is a critical distinction, to make a claim to an employment tribunal.

I disagree, the employer will have to make sure the person with the disability is not at a substantial disadvantage compared to someone who isn't disabled. If you had another person on LTS who wasn't disabled and they followed the same process it would be unfair.

What have they done differently for your husband with him being disabled.

xapprenticex

Undervalued wrote: »

keep in mind that most CAB advisors are lay people with limited training. That too is sadly true of the the first levels at ACAS.

Correct, but the work and advice given by those people are checked and monitored by paid fully qualified staff, if anything is incorrect, the person receiving advice is usually contacted and given the correct advice.

sangie595

pioneer22 wrote: »

I disagree, the employer will have to make sure the person with the disability is not at a substantial disadvantage compared to someone who isn't disabled. If you had another person on LTS who wasn't disabled and they followed the same process it would be unfair.

What have they done differently for your husband with him being disabled.

You may disagree as much as you like , but you are wrong, and you are now making stuff up to try to bolster your argument. There is no evidence of some fictional non- disabled person in the same process, never mind being treated differently. Or even being treated the same. "If's" are not evidence. Any person, disability or not, who is absent from work for any reason, for several months, can expect that an employer would reasonably consider dismissal. But that isn't relevant anyway, because the employer hasn't argued that it is because of the length of the absence (yet). They have said that they are unable to make the reasonable adjustments needed to allow the person to return to work. The length of the sickness is not relevant - they could argue the same thing even if someone hasn't been off for a single day. And that argument does not alter at all no matter what the length of the sickness. So there is no substantial disadvantage in dismissing before the end of the sick leave because the length of the sick leave is not the reason for dismissal. And any test of the length of the sick leave would, in any case, fall in the employers favour in the case of someone who has not been in work for several months and won't be returning for several more, if at all.

You are vastly inflating the protections available under equalities legislation.

kazzah

I am struggling a little to work out what reasonable adjustments a call centre business can make to it's business to accommodate a worker who has deafness and tinnitus.
Sometimes it is actually true that a person who has a disability simply is NOT suited to the work they are employed to undertake - and before anyone jumps down my throat - I work voluntarily for a disability charity and have two sons and a husband with a range of disabilities- so I am not a disabled person hater.

My elder son has Aspergers and whilst he does work - he simply could not work in a sales environment because he cannot interact with strangers- so we would never consider sales work.

My husband used to be a Firefighter - until he suffered an off duty injury and had to take an ill health retirement - because he was no longer able to carry out the duties required of him

reasonable adjustments are just that - they are not a guarantee that every person with a disability can work in every job.
My good friend has Menieres Disease and has been unable to work for some years - the unpredictablity of an attack and the severity of them sometimes leaves her bedridden for days - and realistically she knows it would be almost impossible for an employer to be able to rely on her actually making it into work 5 days a week.

perhaps the OP's husband could ask about a different role within the company ?