Dismissed on grounds of capabilites - Depression

Undervalued

IAmWales wrote: »

You have a long term history of absences from depression.

You have had repeated warnings regarding said absences and you were aware that the next stage would be dismissal.

The employer was reasonable in dismissing you.

I'm not unsympathetic, I have a long term mental health condition and know how difficult managing work can be, but you have to see it from the employer's point of view. Unfortunately they have decided that, taking into account your history, you are unable to fulfil the requirements of your position.

Yes.

Based on what has been posted here I have to agree. Few employers will tolerate that level of absence even after making "reasonable adjustments". I do sympathise but ultimately businesses need people to work, not be off sick for significant amounts of time even if they are not receiving any sick pay.

OP do you have professional advice, maybe from a union? If not,have you contacted any of the organisations who specialise with helping people with similar issues in the workplace? The Richmond Fellowship is one such body

SimonKD

Thank you too everyone who has helped with advice. I just need to move on really, see what the future brings.

:-)

motorguy

avogadro wrote: »

I am just pondering on what might be the best course of action for the OP, given that their condition is not something they have control over.

Depression is treatable with medication, self help, support and counselling - at least to the point of allowing you to function.

I can see the employers point if the O/P was coming across as not taking any action to control the illness.

GarthThomas

You are asking if what they've done is OK. If by "OK" you mean caring and nurturing, then perhaps not, but they are your employer, not your mother, so they don't have to be either of those things.

You seem to be implying that you want to keep your job despite being off nearly as often as you are there. This is a very unreasonable request, and few employers would be willing to acquiesce to it. you need to remember that they are giving you money in exchange for you doing work, and you are not keeping up your side of the deal.

I sympathise, but it sounds as though you just aren't able to do what the job needs, and so it's fair, and right, that someone able to carry it out fully gets it instead.

I hope that your condition improves. Are you getting all of the help,that you need, medically?

xapprenticex

SimonKD wrote: »

Hi Nick, worked there for 4 years and not sure of total time off, but they are saying in the letter:

That between July 2016 to April 2017 (9 month period) I was absent for 101 working days. I've worked out 212 in total working days so I worked just over half. The sickness were long term (i.e. 79 days and 15 days)

Woooooow, that is a LOT. They should have warned you if they hadn't but you cant expect to keep a job with that much time off.

Accept it or not, if you were running a business you would NOT accept that much time off yourself.

pioneer22

OP

Have a read and see if any of this applies to you.

https://www.equalityhumanrights.com/en/multipage-guide/employment-workplace-adjustments

Many of the adjustments your employer can make will not be particularly expensive, and they are not required to do more than it is reasonable for them to do. What is reasonable depends, among other factors, on the size and nature of your employer's organisation.

If, however,

you are a disabled worker, and
you can show that there were barriers your employer should have identified and reasonable adjustments your employer could have made, and
your employer does nothing

you can bring a claim against your employer in the Employment Tribunal, and your employer may be ordered to pay you compensation as well as make the reasonable adjustments. A failure to make reasonable adjustments counts as unlawful discrimination

https://www.rethink.org/resources/w/whats-reasonable-at-work

Edit: Just because an employer has made 1 adjustment and its failed doesn't mean their duty has been fulfilled. And that's straight out of the legislation.

pioneer22

Sorry OP worth reading this too, did they carry out any adjustments or talk about any this time around?

https://www.equalityhumanrights.com/sites/default/files/employercode.pdf

I've read this front to back a couple of times now.

Tiddlywinks

There are very few 'reasonable adjustments' that can be applied with depression which is exacerbated by external events and is severe enough to warrant a near 50% absence rate.

Employers require their employees to carry out the functions for which they were originally employed.... they are not a charity.

Mental health issues can be a lifelong struggle and I really do empathise - sometimes they are severe enough to have to take a break from any employment. The break can actually be beneficial and give a chance to concentrate purely on recovery.

I dont think going down a long appeals process will be helpful to the OP's mental wellbeing - nor is it helpful to encourage his feelings of being 'done wrong'.

From what has been posted by the OP the company has followed appropriate processes and reached a fair but unwelcome conclusion. Time now to use the break to get more treatment, concentrate on building stamina and learning to cope with the personal pressures.

This could be a fresh start......

breakinthesun

Hello Simon

Do bear in mind that a lot of the posters on here don't necessarily have a legal view of your situation but rather how an employer might approach things. My advice on here generally cuts against the grain, so I'll qualify it this time by saying that I run an employment rights charity and regularly put cases into the employment tribunal, including disability discrimination cases with instances of long term absence.

My interpretation of what you've quoted in your original post is much the same as yours : if you have gone back to work following a period of absence, and you're adjusting well, but your employer dismisses you on the grounds that they suspect you may be off sick again in future, then you have potential grounds for a disability discrimination claim and/or a discrimination arising from disability claim. I find the reason they have given unusually up-front and one that carries quite a bit of liability on their side if that is an accurate quote that you have given.

It sounds to me like your depression would qualify as a legal disability from what you have posted given its length, effect and history of treatment. Worth noting that the test for whether you would qualify as legally disabled looks at your ability to do day-to-day tasks when non-medicated, so functioning normally whilst on medication doesn't preclude you from claiming disability.

It is incredibly difficult for an employer to dismiss you on absence/capability grounds if you are disabled - they will need to be able to show that they have explored reasonable adjustments with you, and that it wasn't possible or practical for them to make the needed adjustments.

Some practical steps:

- You have 3 months less one day from the date of dismissal to issue a claim in the employment tribunal. The first step is to complete an Early Conciliation form through ACAS - https://ec.acas.org.uk/Submission/Create
This will "stop the clock" on your time limit and you must do this before you can issue a tribunal claim.

- You may have a reasonable adjustment claim and if so, your time limit for that claim may be more tricky as time will run from the failure to make the adjustment or when your employer did something that was inconsistent with making an adjustment. For that reason I would suggest acting sooner rather than later.

- If you are unemployed and have less than £3,000 in savings, you may qualify for fee remission. If you don't qualify for fee remission, try to find a law centre or a high-street solicitor to take a look at your situation before paying the tribunal fee (larger firms will ask you to pay for them to conduct an initial assessment - smaller firms need the business so will often be able to do this for you for free as a way of picking up work). The Early Conciliation process is free in any event and some advisers can be quite good at advising on your case (though others less so, it very much varies).

Tiddlywinks

breakinthesun wrote: »

I run an employment rights charity

Which one? As you are offering advice it might be useful to provide a website link.

breakinthesun wrote: »

It is incredibly difficult for an employer to dismiss you on absence/capability grounds if you are disabled - they will need to be able to show that they have explored reasonable adjustments with you, and that it wasn't possible or practical for them to make the needed adjustments.

What adjustments would you consider reasonable with over a 50% absence rate?

It would be helpful if you gave examples.