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I was paid off today on capability grounds, please read and help

I have been under investigation for various symptoms for over a year now.

  • sensory - tinging, crawling, temperature changes

  • Motor - left sided weakness, tremor

  • frequent urination, symptoms of infection with no infection present

  • bowel urgency

At first all of these symptoms were being investigated as separate conditions but it September 2012 it was decided that since no individual cause could be found they must all be caused by one condition. Looking back through my medical history it became clear there was an obvious starting point and pattern thereafter. MS was suspected and I have been going through investigations since January 2013 (this was the first available appointment with a Neuro in my area).

I have had the MRI of which I await the results and various reflex tests. My Neuro is confident that it is MS but has also said that if it isn’t then he will be diagnosing me with Peripheral Neuropathy. He confirmed that both of these diagnosis would be covered under the equalities act. He also confirmed that I was already covered under that act due to the length of time my symptoms have persisted (3 years).

He said this as I had mentioned the number of absences I have had from work in the last year (8) and that I was on the last stage of the formal attendance process. He said not to worry, most of his patients are at this stage when they eventually get to him, it’s the nature of how MS presents itself and the long diagnostic process required.

I was put on the last formal stage of the absence process in December 2012 and it was due to run until 8th March 2013, at which point my attendance would be reviewed.

Since December 2012 I have been off work on two occasions totalling 11 days. One absence was due to Norovirus which lasted approx 9 days (my manager took me home from work) and the other was 2 days due to bowel urgency (I tried to prevent this absence by offering to work different shifts but my request was denied and it was put through as an absence). I have been in the business for 52 days.

Two weeks ago I received a copy of a letter sent to my manager from occupational health advising that my Neuro and GP had been in contact, it explained my condition and probable diagnosis - both of which if confirmed would be covered under the equalities act. In addition, it said that they felt it would be sensible to await the results of my neurological investigations before making any definitive decisions in this case. This letter was dated 26th February 2013.

The letter gave me the impression that all was well and that my manager could take no further action against me at this stage. It gave me a bit of piece of mind because I had been worrying about my final review.

Yesterday, my manager took me into a meeting and confirmed my pay rise and bonus details so again I thought all was well - I mean why would they tell me that if they were going to get rid of me the very next day?!! Right?

Today I had what they call my ‘Final Formal Review’ meeting. I wasn’t overly concerned given what had happened over the last couple of weeks but it was still at the back of my mind.

The meeting went on for around 40 mins with my manager going over what has been happening, confirming the level of absence over the past year and what assistance they have given me in order to improve my attendance at work. Basically on 20th February 2013 they had an external assessor come in and review my situation, I was given various equipment last week following the assessors recommendations. They also recommended various ways of implementing flexible working to allow me to accomodate the bowel urgency etc. None of the suggestions with regards to flexible working were agreed.

After the initial 40 minute discussion my manager asked me what I needed from her in order to continue my employment and I said ‘all I have ever asked for was flexibility, the department is open for 70 hours a week and I only work 35, therefore there are enough available opening hours to allow me flexibility’. She said ‘ok, well me and April will go and discuss what you have said and asked for and see if there is anything further we can do to help keep you in employment’. I was left sitting with my union rep for 10 mins when she came back into the room and said that after much discussion they have decided to terminate my employment with immediate effect. I was frogmarched back to my desk, while my manager watched I cleared my desk, I was not allowed to log onto my PC to retrieve anything or log off, my pass was taken away and I was left to sit in reception to wait on my lift. All of my colleague saw this and I could see the looks on their faces.

I have worked for this company for 11 years!!!

It was clear from the outset that she had already made up her mind about my employment before we even stepped into the room. I found out from one of the janitors that when she was away discussing my case, they were actually sitting in the canteen!!! Surely to God they should have been away on the phone to HR to make sure they were doing the right thing!!!

My insurances for unemployment, critical illness ect were all taken out through my employer and paid for at discounted rates from my salary and I have just been told that due to the termination of my contract I cannot make a claim to pay my mortgage. All insurance policies are null and void.

I will only receive 3 months salary.

I will not be paid my bonus as I have left the company before 31/3/13.

My case was not dealt with under the DDA or equalities act as I am not yet diagnosed.

I must also question why they did not take the advice of the occupational health letter dated only 2-3 weeks ago. Surely it is their opinion which counts?

I have the right to appeal within 14 days to get the decision overturned and my job back otherwise it will go to tribunal. My union rep did not fill me with confidence that either the appeal or tribunal will be successful.

Because of the way my employment has been terminated I can apply for benefits straight away. I have never been on benefits in my life and feel sick at the thought.

My father was picking me up from work today and I couldn’t bring myself to tell him what had happened. I’m not sure if I should keep it to myself until the appeal process has ended as this only takes 14 days. I just don’t want to give anyone else the stress if I don’t have to.

I feel completely sick to my stomach at the thought of not having a job for the first time in my life. Not only that I now no longer have any financial protection for my mortgage and no means to pay it without a salary.

Please, please help me.

You need to get a lawyer I think. It sounds like you have an excellent case. Maybe try the MSS helpline - they may know of lawyers who can help you. Your manager has been persistently unsupportive - do not let her get away with it! Good luck. Karen x

Hi anon You absolutely have a case against your employer. Whereabouts in the country are you ? Xx

Rizzo is absolutely correct you need to contact a lawyer! You’ve got an incredibly strong case and they haven’t followed the correct procedures. Have you got all the letters that they sent you and copies of all correspondence between yourself and the employer and also from the gp/neuro to your employer? Having as much evidence as possible is important and also the union rep may be called for evidence so try and remember their name and make a note of it on documentation - I’m assuming its probably already in a letter stating that they were to accompany you for the meeting. Good luck and please keep us informed Karina x

Thanks for the replies.

I live in Scotland.

My union rep basically said that even if I am covered under the equalities act then it just means they have to tick a few more boxes before they can get rid of me. He said they could argue that they have already done all they can and that they cannot accomodate the reasonable adjustment with regards to flexible working.

He then went on to say that although a tribunal is an option the union may not agree to it unless they are sure they will get a good outcome as they have to pay for it.

I’m just in a complete daze with it all and can’t think straight.

I also meant to say that my current manager has only been in charge of me since July 2012.

I was offficially put onto the formal review process in January 2012 by my previous manager. My previous manager allowed me to work flexitime and overtime at the same time as she knew that whatever I was working would be accurately recorded on my daily worksheet. She never once questioned the way I worked and gave me a good mis-year appraisal.

As soon as my current manager became in charge all of the previous flexible working agreements were stopped because she said they were too hard to manage. She was never confident that any time off I had due to my illness was actuallt being worked back.

This is why she had refused all flexible working suggestions.

What a nightmare! My husband has just said that he wonders if you can take the critical illness cover over privately (i.e. via the company that your company uses)?

I’m in the same thinking at tricky123’s husband - there may be an option to carry on all these covers privately. If you can I would contact them as soon as possible to find out your standing on that because that could be one less worry to tick off if you can continue it.

Also with your previous manager did they put anything in writing to say that they agreed to flexitime for you?

I’m going to use tomorrow to make all the necessary phone calls and find out where I stand with regards to appeal/tribunal/benefits/insurances etc.

Another question which has just entered my head is ‘can I apply for other jobs given that I have been sacked due to capability?’. I mean how would that look to a potential employer when I’m asked why I left my previous employment?

Hi

You certainly need Legal advice. I won’t guess at any answers.

Does you Union membership / House Insurance cover Legal advice cover? Many policies do and may be of help with your situation.

Good luck & my thought are with you

Neil

A good start would be for you to phone ACAS they will give good free advice and may be able to represent you. It is not your fault that you are ill and you should be able to take the company to tribunal, they are seriously out of order and have acted illeagally. You are looking at a long haul but should be awarded many thousands £s.

Your previous manager surely set a precedent? And if flexible working is not possible, how have they demonstrated that? Does anyone else have different shifts, even slightly? Does anyone else work from home on occasion? Etc. Do not rely solely on your union rep. Someone I know did that and got terrible advice - she is now suing the union! Do try ACAS but look for local employment lawyers too. Karen x

Meant to say: it is illegal under the equality act for prospective employers to ask medical questions. You also do not have to offer the information, even when you start work (if you choose not to). There are some exceptions to this, but most normal jobs are covered. Kx

Hi, who are your insurances underwritten by? I also get my insurance through my employer. The rules are that if you phone them within 1 month of leaving, you can take out the same amount of cover with them independently. All this info should be in the staff handbook, or you could phone HR. Mine are with Scottish Widows by the way. As for the union, it sounds like exactly the same sort of bad advice that I got. Please contact a local employment solicitors, they will usually give you a first consultation free. The Cooperative also give free legal advice, type them into google. Also bear in mind that there are time limits to making a claim, so you need to start this now. Take care.

Contact EHRC http://www.equalityhumanrights.com/ or as Sally say’s ACAS http://www.acas.org.uk/index.aspx?articleid=1461 DIAL (if available in your area) will even come around your house and help http://www.dialuk.info/

As you are probably aware with Critical Illness the criteria for making a claim is diagnosis. Your Neurologist seems very accommodating; if explained to him perhaps he would take that step so you can claim?

Good luck, you ex Manager is well out of order.

George

Hi Guys

Thanks for all the advice and support.

I have spent the entire day phoning around trying to get advice.

My HR department wont talk to me directly, they said ‘speak to your manager’.

My union are still not convinced that they can get me my job back because of the level of my absence. The basis of my appeal will be the following:

  1. Email received from HR on 28th January 2013 following the initial Occ Health reoprt - HR advised my situation was ‘too high risk’ to make any decisions at that point - nothing significant has changed since that date so why has the risk level changed?

  2. I was first put onto the formal review process in January 2012 and a workplace assessment was only carried out on 20th February 2013 - I feel this was only carried out at that point to enable HR to tick off another box on their list and not as a means to support me in the workplace. I only received the equipment last week and never discussed the flexible working suggestions with my manager prior to our meeting yesterday. This should have been done right at the very start of the process and not at the end as it could have reduced the level of absence.

  3. Occ Health report dated 26th February 2013 stated my current condition and investigations as per a report from my neurologist - occ health felt that it would be sensible to await the results of all investigations before making a definite decision in this case. Why was my employer not willing to wait given there is now light at the end of the tunnel?

  4. My manager took me into a meeting on 11th March 2013 and told me my pay rise and bonus details and then paid me off the very next day. My union feel this was them giving me a false sense of security and only made what happened yesterday even more of a shock.

  5. I had been back at work full time since January 2013 and was meeting my daily targets at the time my employment was terminated. They based their decision on my previous level of absence and that they anticipated absence in future. They were therefore basing their decision on assumption.

  6. My neurologist has confirmed I will be diagnosed with one of two conditions both of which can be helped by medication. We are finally on the edge of receiving that diagnosis and my employers were made aware of that. It would have been reasonable for them to allow me time to receive that diagnosis and treatment and then monitor my attendance thereafter to see if there is a difference. After 11 years service a few extra months would not have made a huge difference.

Everywhere else I have contacted (CAB, ACAS, etc) have basically told me I need to go down the appeals route first and then see if my union are willing to pay for a tribunal, if not then I may qualify for legal assistance elsewhere.

My Neuro isn’t back in the office till Monday but I have left a message with his secretary asking him to give me a call to see what support he can give me with my appeal with regards to results, further investigations, timescales etc.

My GP said that it may be possible to argue that I have not been in the right frame of mind over the last 6 months and therefore may not have been able to fully comprehend the seriousness of absence process and potential outcome.

I’ve applied for jobseekers allowance for the first time in my life. I have a meeting at the job centre on Friday at 12:50pm.

I’ve felt a bit numb today (no pun intended). Everything I do, even putting the dishwasher on, seems pointless. I hate to have uncertainty hanging over me, it’s unsettling.

Any further advice is most welcome x

I’m afraid all I can offer is (((((hugs))))) and the very best of luck to you.

Go get 'em!

Karen x

There’s one organisation not mentioned so far The Disabled Law Service http://www.mssociety.org.uk/ms-support/practical-and-financial-help/work-and-money/employment

To be honest though everyone will say ‘go through your Union’ that’s what you pay dues for? If you’re not; which it seems; I would insist they start ‘wrongful dismissal’ charges at tribunal.

George

a year between being put on stages and THEN getting workstation aids? possibly exacerbating an underlying condition? was speaking to a friend today re a similar matter, a pair of workboots that cost a local authority 11k! no arch support for a manual worker,he had numerous abscences,reported it to his GP,met with HR to offer a solution,was roundly ignored,was then signed off for 6wks with fallen arches,back to work,made call to union on bosses phone, told to pick suitable footwear which cost £8, took employer all the way and sat back and waited, 11K into his account via BACS, 2k to the union for representing him. Just goes to show how small things can have large effects.

Sounds to me like you have a cast iron case of wrongful dismissal if not discrimination to me,but as previous replies have said,get everything set in stone and cross all your t’s and dot your i’s. May be that this new “boss” and I use the term loosely,is trying to prove what a great leader she is and how her department runs so well,perchance your underlying condition and the time off they caused may have been a fly in her little ointment,sadly more and more inexperienced underqualified people are running more and more departments and only see profit and loss and ignore any and all companies true assets,its people.

Good luck x

Dave