Opinion on tribunal case.

oh_really

Not a new user, got lost in the update, had to created new acct.

Relative with 9 years continuous employment was made redundant few weeks ago - only individual made redundant from around 10, he is disabled has blue badge and was in receipt of DLA/ PIP & IIDB. His attendance has been near perfect.

Few months previous to this he was invited to undertake an occupational health assessment, this was conducted over telephone.and had the appearance of being off a script (only individual known of from employer to be assessed).Following assessment there was no contact from provider.Report was sent to employer and he was copied in. Report stated to employer this individual was not disabled in the opinion of assessor (assessor failed to ask right questions).

Outsiders thoughts appreciated on whether to go to trib, aware of ticking clock I'm happy to support and attend but need thoughts of individuals not close.

I can construct a case on the following: Disability discrimination & possible unfair dismissal.

Edit:some content removed.

ThePeopleDirector

You need to appeal the decision (although you may be out of time now).  I would get all the paperwork together and read it carefully.  What was the selection criteria, who else was in the pool, has he been given a copy of the notes taken?  
You should recommend that he contact a solicitor to chat through his case, he also needs to watch the clock as he only has 3 months from the Effective Date of Termination to lodge a claim with the Employment Tribunal.  You could obviously do this without a solicitor by filling the forms online but a DD claim can be complex and sums involved potentially large so it would be worth at least getting a free guidance chat.  He may also be able to get help through his home insurance if he has legal cover.

Undervalued

oh_really said:

Not a new user, got lost in the update, had to created new acct.

Relative with 9 years continuous employment was made redundant few weeks ago - only individual made redundant from around 10, he is disabled has blue badge and was in receipt of DLA/ PIP & IIDB. His attendance has been near perfect.

Few months previous to this he was invited to undertake an occupational health assessment, this was conducted over telephone.and had the appearance of being off a script (only individual known of from employer to be assessed).Following assessment there was no contact from provider.Report was sent to employer and he was copied in. Report stated to employer this individual was not disabled in the opinion of assessor (assessor failed to ask right questions).

Outsiders thoughts appreciated on whether to go to trib, aware of ticking clock I'm happy to support and attend but need thoughts of individuals not close.

I can construct a case on the following: Disability discrimination & possible unfair dismissal.

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Note:

For some reason the OP has deleted the final four bullet point paragraphs from his original post and asked me to delete them as they were copied above.

I have done so but it may mean that some of my reply is now harder to understand. Anyway, the OP knows what he originally asked........


Deduction of wages. Remember an employer can tell the employee to take leave, subject to notice of twice the length of the holiday. So, if there was time the last part of the "garden leave" may have been holiday?

OH report. The right is to see it but not actually to agree it. The employee can ASK the doctor to change it but the doctor does not have to - it has to be his professional opinion. If they can't agree then the employee can insist on the doctor including a statement of the employee's views with the report. Normally, once you agree to a report being written you cannot stop it just because you don't like what it says.

Medical issues are not a reason for redundancy. They may be lawful grounds for a capability dismissal. It is a post, not a person, that becomes redundant.

Edited to add....

Who was the person that conducted the OH "report". Was it a medical professional (doctor, nurse etc)?

Disability, for employment purposes, is not always the same as disabled for other purposes. It is sometimes possible to be one and not the other. Having a blue badge because of, say, difficulty walking may not make you disable for employment purpose if you work sitting down and can get from the door to your desk and from your desk to the toilet.

TELLIT01

I have little confidence in telephone based OH assessments.  I suffer from tinnitus which meant that at times it was very difficult for me to use phones as work.  Because of this it was agreed that I would not have to be on the rota to call claimants to discuss their claims.  A new manager started and decided that I needed to undergo an OH assessment - by phone.  Anybody spot the potential problem here?  I did undertake the assessment and, despite the fact that I had to ask the assessor to repeat questions numeroust times, the assessor reported that there was no reason for me not to use the phones.  Fortunately I was also being assessed at the hospital at the time and the specialist there said, and put in writing, that prolonged use of phones would make the tinnitus worse for a period after using phones.  My employer did accept their opinion.  I also know of other employees at the same organisation, where the assessors report bore little or no relation to their problems.  Telephone assessment is difficult because the assessor can't interact with the person being assessed, and if they don't ask the 'right' questions won't get a full story.

oh_really

Thanks for comments folks. When you're close it can cloud issues.
  I'm not aware of the status of the individual conducting the assesenent, simply it appeared to have the hallmarks of  following a script. He has previously been assessed by 2 NHS occupational health consultant doctors, both stipulated that at least 2 of his conditions would be covered by DDA (relevant reg at time). IIDB assessed at 40% loss of faculty. I'm confident overall picture will show disability and speak to employer intention to exit employee out the door.

Happy for others to weigh in, however I must be mindful of disclosing information to public domain.

Comms69

Just remember that a disability is not a blank cheque - if someone cannot do the job they are paid to do; a disability is not a foolproof protection. 

oh_really

Process speaks to employers process and agenda. No disciplinary issues or concerns over performance.They were and are capable of doing job role. 

Undervalued

I am still struggling to understand where redundancy comes into all this?

If the job is genuinely redundant then the disability aspects are largely irrelevant, particularly if this person is the only one doing that type of work. The employer would be quite entitled to make the post holder redundant just by paying the statutory amounts. Obviously if there is more than one person doing very similar jobs, then who is selected for redundancy becomes a factor and choosing the disabled person, because of their disability, would normally be unlawful discrimination.

In summary.....

So, first of all are they disabled for this purpose? If they are then the employer is obliged to make reasonable adjustments. Providing, with such adjustments if needed, they can do the job satisfactorily then they cannot be lawfully dismissed on capability grounds.

Is the post redundant? If so then they can lawfully be made redundant, subject only to possible selection issues.

Finally, if the job is being done satisfactorily and still needs to be done, then what would be the employer's motive for trying to get rid? 

oh_really

[quote] I am still struggling to understand where redundancy comes into all this? [/quote]
Makes two of us. In reality the job is not redundant but redundancy appears to have been used to exit. The work content will still be required to be completed.

[quote]Finally, if the job is being done satisfactorily and still needs to be done, then what would be the employer's motive for trying to get rid? [/quote]
Thats the $64k q. I suspect due to percieved ongoing disability issues, the employer has taken the path of least resistance and exited to avoid potential hassle in the future.

jonnygee2

Is this person's role unique, or are the other 10 people you mentioned doing the same job as them?
If it's the same job were they given an indication of selection criteria?

oh_really

Job isn't unique. The others doing the same job hold a qualification this person doesn't (the qualification is for a different area of work , its a technical qual).