Dismissed on grounds of capabilites - Depression

Masomnia

Sorry if this has come up and I missed it but did your employer use any kind of occupational health service, or get a report from your doctor?

"The panel did not feel that you provided adequte assurances that if faced wth similar personal traumain the future you would be able to maintain a regular level of attendance."

They should base this on a medical opinion.

I agree with breakinthesun in as far as I think they're taking a big gamble in dismissing you.

If they'd followed the process and you remained off work with no real prospect of returning then I'd understand. But you had returned to work, and produced medical evidence that your prognosis was improving.

You've had a lot of time off, but I think that could be a bit of a red herring. There was an unfair dismissal/disability discrimination case fairly recently where the individual was dismissed after a year of absence without having returned to work, but because there was medical evidence that her return to work was imminent and the employer dismissed anyway this was held to be unfair by the court of appeal.

Every case must be assessed on its own merits, but I think breakinthsun's advice to see if you can get a free consultation with a solicitor to go over your case is good, they'll be able to give you a realistic idea of your prospects.

Masomnia

Tiddlywinks wrote: »

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

It would be helpful if you gave examples.

I'd be interested too. The point really though is that the employer should be able to evidence that they've at least sought medical advice on reasonable adjustments, or asked the individual what they would need.

There's obviously no obligation on them to do what is requested, but they should at least be having the conversation.

JReacher1

Not legal of course but it sounds like you annoyed them with the tribunal and they've been looking for an excuse to get rid of you.

Undervalued

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.

No it is not. It is harder and involves a greater risk, depending on the circumstances, but "incredibly difficult" is wildly overstating it.

An employer is not a charity existing to support the disabled. The law, quite rightly, provides some protection and requires the employer to make "reasonable adjustments". That is all. Although it is not specifically spelt out, tribunals usually expect slightly more of larger employers than from a small business with a handful of staff.

In my experience most (obviously not all) large employers do far more in this regard than the law would actually require. Because of that people frequently mistakenly believe that their rights are more extensive than is actually the case.

In any case it has not been established here that the OP is actually disabled. Does he have sound medical evidence to back this up? If so was the employer made aware of this or, if not, should they have reasonably been aware? It is nothing like as obvious as with a physical disability.

The level of absence is huge and I, like others, are struggling to see what reasonable adjustments would help. That of course assumes a disability otherwise the employer is not obliged to make any adjustments at all.

Possibly the employer's mistake here is not taking action sooner whilst this extensive sick leave was ongoing.

pioneer22

Tiddlywinks wrote: »

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




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

It would be helpful if you gave examples.

Occy health assessment
flexibility of the sickness absence triggers
Flexible working hours
Redeployment
Providing a mentor
psychiatrist's assessment
Paying for CBT or Therapy to name a new.

I would of let him have the time off for 6 months let his condition get better then arrange for a gradual return to work. Not unreasonable in the eyes of a tribunal.

pioneer22

Undervalued wrote: »

No it is not. It is harder and involves a greater risk, depending on the circumstances, but "incredibly difficult" is wildly overstating it.

An employer is not a charity existing to support the disabled. The law, quite rightly, provides some protection and requires the employer to make "reasonable adjustments". That is all. Although it is not specifically spelt out, tribunals usually expect slightly more of larger employers than from a small business with a handful of staff.

In my experience most (obviously not all) large employers do far more in this regard than the law would actually require. Because of that people frequently mistakenly believe that their rights are more extensive than is actually the case.

In any case it has not been established here that the OP is actually disabled. Does he have sound medical evidence to back this up? If so was the employer made aware of this or, if not, should they have reasonably been aware? It is nothing like as obvious as with a physical disability.

The level of absence is huge and I, like others, are struggling to see what reasonable adjustments would help. That of course assumes a disability otherwise the employer is not obliged to make any adjustments at all.

Possibly the employer's mistake here is not taking action sooner whilst this extensive sick leave was ongoing.

Sorry I completely disagree see: Croft Vets Ltd and Others v Butcher UKEAT/0430/12

https://www.equalityhumanrights.com/en/multipage-guide/reasonable-adjustments-practice

Even so far as hiring a support worker for a disabled person.

There is plenty of case law for reasonable adjustments.

http://www.whitepaperdocuments.co.uk/index.php?option=com_docman&task=doc_view&gid=2317&tmpl=component&format=raw&Itemid=2

Undervalued

pioneer22 wrote: »

Sorry I completely disagree see: Croft Vets Ltd and Others v Butcher UKEAT/0430/12

https://www.equalityhumanrights.com/en/multipage-guide/reasonable-adjustments-practice

Even so far as hiring a support worker for a disabled person.

There is plenty of case law for reasonable adjustments.

http://www.whitepaperdocuments.co.uk/index.php?option=com_docman&task=doc_view&gid=2317&tmpl=component&format=raw&Itemid=2

In the Croft Vets case the employee had significant medical evidence from consultant psychiatrists that their condition was work related. There is no such evidence here, in fact the OP lists causes from outside of work. So I don't think that case is particularly relevant.

As I said earlier in this thread, although it is possible the OP's condition may amount to a disability that has not been established. Unless or until it is all discussion of reasonable adjustments is hypothetical. Given that has not been evidenced and brought to the employer's attention it is most unlikely it could be claimed that they should reasonably have known he is disabled (if indeed he actually is).

However, even assuming for a moment the disability is established, what reasonable adjustments do you think the employer should have considered in this specific case?

pioneer22

Undervalued wrote: »

In the Croft Vets case the employee had significant medical evidence from consultant psychiatrists that their condition was work related. There is no such evidence here, in fact the OP lists causes from outside of work. So I don't think that case is particularly relevant.

As I said earlier in this thread, although it is possible the OP's condition may amount to a disability that has not been established. Unless or until it is all discussion of reasonable adjustments is hypothetical. Given that has not been evidenced and brought to the employer's attention it is most unlikely it could be claimed that they should reasonably have known he is disabled (if indeed he actually is).

However, even assuming for a moment the disability is established, what reasonable adjustments do you think the employer should have considered in this specific case?

Croft might not have been relevant, but the extend the employers have to go down is. You're saying they barely have to do anything, which isn't true. Reasonableness is down to the size of the employer. In that case the employer paid for CBT.

As above, I work in occ health so have seen this many times before.

Occy health assessment
flexibility of the sickness absence triggers
Flexible working hours
Redeployment
Providing a mentor
psychiatrist's assessment
Paying for CBT or Therapy to name a new.

I think the employer should of either let them have the time off as disability related sick leave. Not letting it hit their record.

Or

Provided a psychiatrist assessment followed by councilling or CBT.

As the OP noted they're a good employee and good at their job.

Savvy_Sue

Tiddlywinks wrote: »

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

Also worth pointing out that even if the employer IS a charity, they still need their employees to be there to carry out the functions for which they were originally employed ...

pinkshoes

They are a profit making organisation, not a charity, so their decision to dismiss you was fair.

I think you need to see this as a positive rather than dwelling on it. Do you really want to work for a company that try to make deaf people answer the phone??