URGENT HELP REQUIRED - MS Unfair dismissal ET - response required today

Everyday living
1

I was dismissed from my 11 year career in March 2013 due to illness/capability. I had been taken through a 24 month informal/formal absence process, whilst symptoms/absence increased and I was investigated for various conditions (Endometriosis, Crohn’s disease and in the end MS). In the month before my dismissal, Occ Health sent my employer a letter recommending that no definitive decision be made in this case (in respect of my employment) until the results of all Neurological tests had been received.

My employer ignored this recommendation and terminated my contract only 14 days later.

In May 2013 I was formally diagnosed with MS.

I am currently going through an employment tribunal for unfair dismissal/discrimination as my employer refused to make reasonable adjustments in order for my attendance to improve/be maintained - I had asked for various adjustments in respect of flexible working in order for me to manage the debilitating bowel issues I was suffering from. A Mircolink workplace assessment was first carried out in February 2013, 23 months into the absence process and when questioned on this the Respondent stated that this was the first opportunity they had to carry this out due to my recurring and excessive absence. The Microlink assessment gave various reasonable adjustment recommendations in order to improve my attendance whilst still under going investigation - my employer was unwilling to make any of these adjustments.

My employer was a major UK company with well in excess of 20k staff.

Last week, following receipt of a report from my Neurologist the Respondent conceeded that they now recognise that at the time of my dismissal and the 24 months prior to this that I was in fact suffering from a disability. However, they do not accept that there was any reasonable cause for them to have known this at the relevant times (in order to make reasonable adjustments) and therefore still dispute my claim.

Shortly after my dismissal, I was sent notes from my employer confirming my termination and reviewing the 24 month absence process. Within these notes my employer states that over the last 24 months Laura has been suffering from sensory issues, migraines and bowel issues and has been under investigation for Endometriosis, Crohn’s disease and MS with no official diagnosis to date.

Occupational Health were involved from June 2012 and sent 4 letters to my employer. Each letter made mention of the disability provisions of the Equality Act 2010; two stated that they did not feel this applied to me (in their opinion), one stated that as no formal diagnosis had been made they therefore did not feel this applied to me and the last one (sent to my employer in February 2013, just 2 weeks before my dismissal) stated that after receiving a report from my Neurologist the potential diagnosis would be covered under the Equality Act 2010.

On Monday 10th March 2014, I received a telephone call from ACAS informing me that the Respondent had made an offer to settle on the following basis; I withdraw my claim in full and they will agree not to pursue me for their costs. No financial settlement was offered. This offer is only on the table until 5pm today (13th March 2014).

Yesterday, I was copied into an email from the Respondent to the ET judge as below:

Given that a hearing is currently listed to take place on 21 March in any event, we would propose that the hearing is converted to a short preliminary hearing, to take place by telephone, in order to confirm the issues which remain in dispute and to make arrangements and any necessary case management orders for a merits hearing in due course. In the alternative, if the tribunal does not feel that this is necessary we would ask that date listing stencils be issued to the parties to allow a merits hearing to be scheduled.

For the avoidance of any doubt, whilst the respondent accepts the claimant’s disability status, the respondent continues to assert that at the relevant times the respondent did not know, and that there was no reason why the respondent should reasonably have known, that:

  1. the claimant was suffering from a disability; and/or

  2. that she was being placed at a disadvantage as a result of the failure to make any of the reasonable adjustments suggested by the claimant.

I have today received an email from the ET judge asking for my comments in relation to changing the type of hearing on 21st March 2014. Nothing was mentioned about a Merits hearing or date listings. I need to respond to the judge by 5pm 14th March 2014.

Really, I am looking for advice on how to proceed with the above.

Do you feel it was reasonable for them to have known that I may have been suffering from a disability as defined under the act? Afterall, the review period was 24 months long, the absences were all connected and the conditions I was under investigation for are all incurable and have recurring symptoms. Surely they have a duty through management, HR and Occ Health to recognise diability? No?

I really need opinions/advice on this as I can’t afford to be pursued for costs but I’m wondering if this is just a tactic to settle the claim so the hearing on 21st March 2014 doesn’t go ahead.

Help, please x

2

I think you need to phone the MS Society helpline and see if they can put you in touch with someone who knows the legal position. I do think your former employers are trying to dodge the full hearing as they have behaved appallingly. Even if they didn’t have a firm diagnosis you still had symptoms (under investigation) which were affecting your ability to carry out your normal duties and I believe that means you were covered under the Equality Act.

I did a bit of googling and came up with this:-

http://www.equalityhumanrights.com/uploaded_files/Questionnaire_guides/proving_disability_and_reasonable_adjustments_workers_guide_final.doc

It makes interesting reading. I think it helps your case a lot. Good luck and I’m sure there will be others will very good advice along soon

Tracey xx

3

also contact the citizen advice bureau, they usually have access to employment solicititors

4

Seems to me that they have been caught with their knickers down. They thought you would just accept it and go away. Just because they are a big firm and probably have in house legal team they think they can bully and worry you about legal fees etc. I am afraid many medium to large firms use these tactics. Have had similar problems when part of redundancy package should have been paid into pension fund but we find 20 years later it never was. Hold your nerve and phone the help line. I am with Tracey on this one. They probably won’t want the publicity this could generate and are now actually trying to wriggle out of a decision they should never have made in the first place without the necessary reports in place. Good luck keep us posted.

5

Here is a guide to ‘reasonable adjustments’ C:\Users\User\Documents\Downloads\dda_workers_guide_reasonable_adjustments.mht and here is The Equal Rights Commission; ring them now and they will help http://www.equalityhumanrights.com/

Contact DIAL http://www.dialuk.info/ who will come around your house and help with the forms. Or Benefits and work http://www.benefitsandwork.co.uk/ who give excellent advice costs £19.40 per year. The DLS give excellent free advice http://www.dls.org.uk/advice/factsheet/factsheets_download.html it is essential you get help.

The law describes being disabled as a long term chronic complaint affecting your ability to act normally. It is NOT your responsibility to prove this; it is your employer’s responsibility to give you a medical to prove or disprove.

Do not go to any meeting without a Union Rep. Colleague; who can confirm what is said. Fair enough you do not expect any company to hold a job open forever; but they MUST go through the correct procedure. Unfortunately this is what we get with this type of Government backing.

G

6

Hi Anonymous

Seek professional legal advice and whatever happens don’t give in or back down. I went through a similar thing in 2001 and it went right to the wire. Don’t be put off by the tactics they may try, you have all to gain and they are the ones who stand to lose out. Remember these are only jobsworth people and bullies, you wouldn’t let someone else bully you so don’t let these people, you have rights.

All the best to you but once again get professional legal advice.

Steve

7

I am no expert but suggest you do the following-

It is important that you respond to the judge before 5 pm on 14 March - explain that you need to take legal advice. Point out that your employer made you an offer on 10 March and only gave you three days to make your mind up – not long enough. Point out that you are challenging what your employers are saying, namely that you are not covered by the Disability Discrimination Act.

Consult an employment solicitor - what you crucially have to prove, and you’ll probably need your medical records to do this, is prove that your medical problems prior to your being sacked were serious enough for you to be covered by the Disability Discrimnation Act.

If you were formally dx’d in May 2013 it’s my guess you will have had some disabling symptoms for some time before dx.

8

Hi there!

I suggest you check your home insurance to see if it includes legal cover. Mine did and I used it to pursue an ET claim against my former employers. They backed down and settled out of court when my solicitor told them she was appointing a barrister!

9

Thanks for the replies guys.

I ignored their threat to settle on the promise they won’t pursue me for costs and have informed the judge that I am happy to change the meeting on the 21st.

Any further help/opinions are welcome.