Reasonable Adjustments for 18 months but suddenly notified terminated on Incapability grounds

kay159

Partner works for large distribution company. Had issues with blood pressure which meant was off work whilst investigated. Company delayed return to work advised consideration of ill health retirement but at 55 with only limited pension he fought this
Company made reasonable adjustments of a stool (in case dizzy), changed duties and a lift pass and reduced hours from 40 to 30 weekly. This was very successful and he worked for over a year with no issues
When COVID happened the warehouse went into lockdown and has reopened over the past 7 months. He was not contacted during this time to be offered a return to work until 6 weeks ago when he had a meeting with Occupational Health
Today he was asked to come to a Welfare Meeting, being one of only 4 staff on his floor who had yet to return to work (all of who were under OH). He assumed this was to discuss his return from furlough but was told he was to be terminated on grounds of incapability
His condition is unchanged, the duties are still available, COVID compliance allows for a chair and pass and the hours are still available. His OH report states he can return to the same duties with the same adjustments. The employers have cited a new one way system which means additional walking (he walks 15000 steps a day during lockdown) and the risk of collapse at work when ambulances may be delayed due to COVID placing a pressure on them. He has never collapsed but has labile BP where he may feel dizzy if stood or sat in one place for too long, hence the chair to allow him to change positions if required.
Given that the employer allowed him to come back to work under reasonable adjustments and these were demonstrated to work, can they now state that those adjustments are no longer 'reasonable' given that they still exist in the workplace?
He has a meeting with H&S tomorrow to walk through the warehouse where concerns will be highlighted and he can make comment but his Union Rep is convinced the company will still proceed with Termination on grounds of Incapability - but that they may offer an incentive to take this rather than placing a formal grievance with a solicitor
Are we right in thinking that as reasonable adjustments were successful and nothing has changed in the interim and that his position is now being filled by another member of staff who has been offered similar adjustments he has a claim for unfair dismissal (or something equivalent) and if so what settlement may he be offered in addition to the general 12 weeks PIL and holiday buyback. The Union have stated they are willing to negotiate the best settlement on his behalf but have not suggested what that may be
We are in total shock as nothing has been mentioned during furlough then this.......
Any advice would be most welcome
He is 57 and an unskilled work if that makes any difference - hence retraining and redeployment options are limited as would be the chance of securing further employment with Incapability being mentioned on any references the company may provide

oh_really

He's a union member, take advice from them as they are best placed.

Why are you referring to a solicitor given the above and what has a solicitor got to do with a grievence?

A capability dismissal may indeed be forthcoming however a process may require to be followed beforehand, union first and last port of call.

eamon

Don't engage with any solicitor outside of your partners union (they have their own experienced solicitors that will act in a members best interests and it will cost you nothing). It is possible that the local on site rep may not be skilled enough to fight his corner, given that your partners working life is being threatened with curtailment I would suggest that the case be escalated to branch level.

Ultimately it will all boil down to money. If the employer is determined to dismiss then given your partners health and what he wants/needs his union should be pushing for his pension contributions to made up to completion in line with the scheme rules. That would make it more palatable I think.

kay159

Many thanks - solicitor mentioned as he wasn't sure if the union Rep had the experience to handle this - escalation to branch level is a great idea and will pass on the advice
Just for clarification he is not in the company pension scheme only the peoples pension for the last 6 years - as a low paid job, at the time he was not in a position to afford the deductions (please dont judge - obviously in hindsight this was a mistake)

eamon

kay159 said:

Many thanks - solicitor mentioned as he wasn't sure if the union Rep had the experience to handle this - escalation to branch level is a great idea and will pass on the advice
Just for clarification he is not in the company pension scheme only the peoples pension for the last 6 years - as a low paid job, at the time he was not in a position to afford the deductions (please dont judge - obviously in hindsight this was a mistake)

I won't judge you or your partners decision re pension. When you are low paid paying into a pension scheme is a huge ask and many thousands of people just can't afford it. In light of your 1st posting and in an attempt to keep his job (in fact any suitable job within the company) have Occ Health ever mentioned/considered redeployment to a "less" risky role. If not I'd be tempted to push for a new referal back to them. Of course his employer can always say no but at least it shows determination not to just roll over. I would suggest that your partner has nothing to loose and every week is another pay packet. Definitely get you partner to insist that his case gets to union branch level.