Unfair dismissal Ill health

[Lewis2020]

Hello everyone I hope your all staying well in these strange times we currently face

I am if possible just looking to obtain some legal advice please if possible regarding unfair dismissal under ill health grounds

My partner unfortunately lost her job last month under ill health grounds the whole process at the end was absolutely shocking and most of the company’s own policies and procedures were simply just not followed, She has been getting help from Acas who agreed with her complaint and the grounds she was claiming on and advised to use the early conciliation service but the information they give keeps changing once my partner has followed everything they advise her to do.

She was advised to send a email to the employer within the first 5 days of being sacked to complain about her unfair dismissal and put all the points raised in the email as it would look better if it goes to a tribunal that she’s followed all the correct acas procedures etc

She done this and She very reluctantly attended another phone call meeting with the employer last week to discuss her appeal.
Today her employer sent a email with all the findings and the notes from the phone meeting and they agreed and upheld her complaint that the policies and procedures were not followed correctly but they disagreed with the wording in the Occupational health report and feel they acted correctly in the health dismissal again we fully dispute this. In the email they stated they would learn in the future, no apologies nothing the amount of stress and worry this company put on my partner who is already unwell and also suffering with depression and anxiety is shocking.

They always promised during previous home visits that nothing would happen to her employment within the first 6 months and to not worry, my partner was due to have her appointment with the hospital for her pain relief she desperately needs to get back to work which the company was fully aware of the whole way through the sickness leave. They were fully aware that there was a 6 month wait list for the chronic pain team in the hospital and She was due to have the appointment in May 2020 but completely out of the blue without any warning in April 2020 they called and sacked her at 5 months on sick leave

They stated in the sacking email that the occupational health report stated she wouldn’t be able to return indefinitely so decided to end her employment

We have a copy of the health report and no where in this report dose it ever state indefinitely it simply stated due to the Covid-19 outbreak appointments at the hospital are now effected so could take another 6 months so no foreseeable return within 6 months

We raised this in the appeals hearing and emails etc and the reply was this

Whilst we agree that the procedure has not been followed appropriately we do support the interpretation of the Occupational Health report. Whilst it doesn’t state you will be unable to return ‘indefinitely’. It does state there is ‘no current foreseeable return’ and a decision has been made considering the information and advice presented within the report.

She contacted acas this afternoon as they are dealing with the early conciliation to say about this new email report etc and she couldn’t have been any more unhelpful and basically tried fobbing her off maybe because it’s Friday afternoon but was such a difference to her previous helpful advice calls, but my partner could really ideally get some proper advice on what to do next ?

sorry for the long post but any help would be so grateful thank you

[ULA]

Hi, in terms of ACAS, the advice they gave about completing the internal process and raising an appeal against the dismissal is correct and good advice. This means your partner can demonstrate to any tribunal (if the claim goes that far) that she exhausted all internal procedures before submitting a claim. You refer to the fact that since then the information keeps changing and that today she felt that she was being “fobbed” off. Can you let me know what they have actually been recommending.

How long has your partner been working at the company?

Was your partner receiving any company sick pay over and above SSP? If so, was this due to runout/reduce at this 5 month period. Just trying to see what if anything prompted this action.

Do you know what the status is of the company are other staff working/on furlough/or part and part?

Where there any follow-up notes to the home visits – just trying to establish whether there is any documentary evidence to their assurances about the first 6 months?

Was there a sudden onset of your partner’s condition or has there been a longer term issue which became exacerbated?

Sorry for all the additional questions, just trying to get an better understanding of the situation.

[Lewis2020]

Good evening Ula thank you for your reply were both very grateful With regards to acas she came off the phone so upset and just felt really let down with the advice she had been issued compared to the previous conversations. She stated that we would now only have 1 week left before the deadline extension ends and from previous conversations she had been advising that we could claim compensation etc for the way she was dismissed and to follow all procedures something to do with loosing 25% of the figure if she didn’t ? Yet today when my partner called and mentioned the settlement not being offered by the company after upholding my appeal she was acting like why are you even asking for money ? It was just a complete turnaround in advice especially now the appeal reply had been received and confirmed they acted incorrectly in the sacking.

My partner explained how unhappy she was especially not even getting a apology in the appeal email and the lady said they can’t apologise as that would admit fault, even though they already had ??? She then just said send her a amount of money I would like to settle for and she would then pass it to the company to see if they would accept to save it going to a tribunal.

Previously she stated if they admitted fault which they probably wouldn’t as it’s very rare they do they would send her a settlement to end the claim, yet the company have admitted fault and she now says it’s my partner that has to ask for a settlement and stated she can’t claim for all the stress and issues they have caused by doing what they done. She also stated previously that we could get a solicitor to look over the settlement at the companies expense but again today that’s now not the case as we have to make the settlement offer ourselves and have no idea what she’s allowed to claim for we are at a complete loss at what to do. She said to have a think over the weekend what she wants and to get back to her on Monday

The other answers to your questions

I wanted to also say she comes under the equality act 2010 if that makes any difference it was documented in the occupational health report ?

my partner had been with the company for 2.5 years

The company are still fully operational no changes

The company has a sick pay scheme where they double the sick pay for a maximum of 6 months

It also states in the company policy the following ( xx.x xxxxxx will not normally consider terminating the employment of an employee who is absent from work due to genuine sickness or injury during the first six months of absence or before the individual’s sick pay entitlement expires. Thereafter the position will be reviewed monthly and ultimately it may become necessary from a business perspective to consider termination of employment.

Yes there was follow up notes made one mentioned my partner being worried about loosing her job and they listed they advised her not to worry as the company has procedures in place and they can’t just sack her ( even though the procedures weren’t followed in the end )

The illnesses had been progressing for a while but she kept going until she couldn’t handle the pain anymore and was then signed off she hadn’t missed any work previously

hope that answers everything you need and thank you again

[ULA]

Thank you for the further information which has been very helpful. You have also answered my question which was to try and establish whether your partner's condition would be considered a disability under the Equality Act.

It sounds like the early conciliation process has been extended from the initial month period. If settlement cannot be reached, then ACAS will issue a certificate with a number which would need to be detailed on the ET1 should your partner wish to pursue a claim via the tribunal.

To clarify the situation with regard to agreements to settle a claim there are two types:

1. Settlement Agreement (SA) - this is drawn up by the company and agrees to pay a sum in order to settle the dispute but for that the individual would need to give up rights to pursue further employment claims, the details of which would be listed. Needless to say, one of those would be in regard to the specific claim. If agreement is reached by way of an SA then the company would be required to pay, up to an agreed sum, for the individual to take independent legal advice and the advisor would need to sign off that the advice had been given.
2. COT3 - this is when agreement is reached and for which the ACAS conciliation officer will write up what is agreed on a form called a COT3. This usually happens as a result of early conciliation. The individual can, if they wanted, consider getting advice before signing the agreement (ACAS cannot advise on the merits of the settlement being offered) however, the company would not be obliged to pay for that advice. Please be aware once the individual and the company say they agree to it, then even if a document has not been signed the agreement is still binding.

Given the further information you have provided, it is clear that:

1. The company has a policy in place of not normally consider terminating the employment of an employee who is absent from work due to genuine sickness or injury during the first six months of absence or before the individual’s sick pay entitlement expires. Since there is an OH report the company knows that there is a genuine sickness.
2. There are notes to support the fact they told your partner not to worry as they have procedures in place.
3. There is also the admission that they have not followed those procedures.

I think what your partner needs to consider is does she want to pursue a tribunal claim? This does not preclude the fact that settlement can be reached at any time up until the hearing. There are often situations of settlements being reached after early conciliation has failed but before any tribunal hearing occurs. I presume that your partner’s claim would be on the grounds of unfair dismissal.

Given the latest conversation with the ACAS conciliator, the possible way to deal with this is to go back after the weekend and say that given the evidence of a failed process, admission that they did not follow their own procedures, policies and notes of meetings that support that normally a dismissal would not take place due to ill health whilst someone is still receiving company sick pay, she believes these are grounds for an unfair dismissal claim. That given she has made the decision she will make an ET1 claim if early conciliation fails, however she would be happy to consider any settlement offer the company might want to make. That way it puts the ball back in their court so to speak. If the company is made aware that your partner is considering pursuing the matter and they have admitted they have not followed procedures then they may start to think about coming to a settlement.

I hope that helps but if you have any more questions then please do ask.

[Lewis2020]

Good Morning ULA thank you again for such a detailed response were both very grateful. The advice is perfect and will now follow your advice so thank you

[ULA]

Glad it was helpful. Keep us updated and you know where we are if you have any more questions. Enjoy your weekend

[Lewis2020]

Glad it was helpful. Keep us updated and you know where we are if you have any more questions. Enjoy your weekend

Good Afternoon ULA I hope your well

Just to update you that I done everything as suggested in your reply and contacted the advisor this morning to confirm they had received the email etc from Sunday.

She stated she had passed on the email to the employer but dose not think anything will come of it

2 hours later I’ve just received a email from the advisor to say the company are now taking legal advice and but want to know what I am looking for to resolve the case

This has now put it back onto me so have no idea on how to reply what would you suggest ?

Thank you again

[ULA]

Thanks for the update. If they are still insisting on your come back to them then may be time to get your calculator out

Claims for unfair dismissal are broken down in the following elements each with their own calculation

Basic award
Is calculated in the same way as a statutory redundancy payment which is based on age at dismissal and completed years’ service. You can use the government calculator which I have linked to here

Compensatory award
This takes account of the fact that your partner would have lost her employment rights and will need to build up 2 years’ service in new employment. This amount is likely to be around £450 to £900 regardless of income.

Compensation for loss of earnings until such time as she might find a job with the same salary or stop looking for another job. The maximum that can be claimed is £ 88,519 or up to one year’s salary whichever is less, and this is on net pay. I have to say 12 months is an very generous time scale for a tribunal to consider this element of the award and it is typically less than this, however given the current turbulent situation I have no idea how a judge would now view this.

ACAS Uplift
If the tribunal finds that the employer has not followed the ACAS code of practice they increase the compensation awarded by up to 25%. If they find the employee has not followed the code of practice this compensation could be reduced by up to 25%.

Not that you have said much on this but if there is any view that their may have been any discrimination regarding their actions because her condition is recognised as a disability then this may have an "uplift" factor on the claim.

Hope that helps as a starting point to come up with a figure. I would also advise on a sensible figure, this will be a negotiation if the company want to engage in a settlement, so start higher than you may want to achieve as the company will certainly start low. Also remember getting a settlement now takes out the stress and hassle of pursing an ET claim.

[Lewis2020]

Thanks for the update. If they are still insisting on your come back to them then may be time to get your calculator out

Claims for unfair dismissal are broken down in the following elements each with their own calculation

Basic award
Is calculated in the same way as a statutory redundancy payment which is based on age at dismissal and completed years’ service. You can use the government calculator which I have linked to here

Compensatory award
This takes account of the fact that your partner would have lost her employment rights and will need to build up 2 years’ service in new employment. This amount is likely to be around £450 to £900 regardless of income.

Compensation for loss of earnings until such time as she might find a job with the same salary or stop looking for another job. The maximum that can be claimed is £ 88,519 or up to one year’s salary whichever is less, and this is on net pay. I have to say 12 months is an very generous time scale for a tribunal to consider this element of the award and it is typically less than this, however given the current turbulent situation I have no idea how a judge would now view this.

ACAS Uplift
If the tribunal finds that the employer has not followed the ACAS code of practice they increase the compensation awarded by up to 25%. If they find the employee has not followed the code of practice this compensation could be reduced by up to 25%.

Not that you have said much on this but if there is any view that their may have been any discrimination regarding their actions because her condition is recognised as a disability then this may have an "uplift" factor on the claim.

Hope that helps as a starting point to come up with a figure. I would also advise on a sensible figure, this will be a negotiation if the company want to engage in a settlement, so start higher than you may want to achieve as the company will certainly start low. Also remember getting a settlement now takes out the stress and hassle of pursing an ET claim.

Thank you for the quick response as usual




So just to confirm I’ve got this roughly correct as I don’t want to come across as a fool




Firstly from what I can gather she can claim the basic award which will be 2 weeks pay from using the basic award calculator ? = £615.48




The 2nd is to claim for the compensatory award for loss of employment rights at between £450-£900 ( should she start high at £900 because they will as you say come back lower ? )

= £900



Then 3rd is to claim for loss of earnings until she finds a new job ( again should she put 12 months especially because of the Covid-19 situation and wait for them to come back with a lower amount ? )

12 Months @ £16002.48 - Minus tax Etc £14521.68


With regards to the above where she would stand with the loss of earnings etc as at the time of sacking she was on SSP and had been for 5 months and now claims new style Employment and support allowance contribution based assessment rate for 12 weeks. Only since her sacking would this have any effect on the amount she could claim for loss of earnings etc ?




The company have upheld her appeal that they have not followed the ACAS code correctly on a few sections so again should she start by asking for the full 25% uplift and expect them to come back lower or would you recommend different ?




With regards to a further uplift Because of disability discrimination they were again fully aware of her disabilities which was also stated very clear on the occupational health report and mentioned in all other meetings held. They also admitted in the appeal hearing report that they didn’t follow the correct procedures for example the following




Consideration of alternative roles

There is no evidence of alternative roles being considered or discussed with you prior to the decision regarding your employment being made. Advice regarding alternative roles was provided in the Occupational Health report but we acknowledge this was not discussed in detail as part of the formal absence meeting.



They also stated they interpreted the occupational health report to mean that there was no foreseeable return etc when it’s written in black and white could be up to 6 months especially because of Covid-19 and certainly dose not say anywhere about no return indefinitely like they originally claimed when sacking without notice

The total so far if I have worked it out correctly is £16,037.16 with regards to the uplift would that now get added on top ? How much on top of the 25% uplift would you recommend for the discrimination part ?


One last question is there a correct way to send over a settlement offer figure I.e do I list how I’ve worked it out etc or do I just send a figure over I’d like it to come across professional and as if I know what I’m doing


Thank you again and so sorry for the long post just want to make sure I’ve covered everything

[ULA]

If you calculated the basic award via the redundancy calculator (sorry I forgot the link but easy to find via Google) it seems correct 2 years completed service and in the age bracket for one week per completed year of service.

Loss of employment rights it is very unusual for the higher amount to be awarded I suggest £500.

12 months calculation - the net payment needs to be minus tax and NI. On your other point base it on her normal salary.

ACAS uplift then yes start at the full 25%

Not sure if you are going to email this to ACAS or just call them. If the latter then you can just go through the figures and detail how you arrived at them. If you are going to email then here is a template schedule of loss, accept this is designed to be presented at a hearing so best to take out all the top section about Tribunal venue and case number but the rest gives you the process for working out the figures. That way you can attach to the email.

Claimant Schedule of Loss Unfair Dismissal - Copy.doc

As I said you also need to factor in a reduction to settle and avoid the stress factor of pursuing a tribunal claim, as I said you need to go in at a realistic "high" figure you can start negotiating from. if it is too unrealistic you may find the employer just does not engage and then you will be potentially pursing the claim at and ET.

[Lewis2020]

Brilliant thank you so much

I have just filled in the form the best way I could just hope I’ve done it correctly It’s Coming in at nearly £19k before I send it what sort of reduction would you recommend we ask for on that kind of figure to get the company’s attention to engage and hopefully stop the need of any further stress with a tribunal ?

I also forgot to ask she was issued with 2 weeks wages when they sacked her along with her holidays due as that’s what it stated in her employment contract. Would that effect the basic award ? I just really don’t want to list things and the information is wrong etc then the company thinking I have no idea on what I’m doing and mess her around any further

thank you Again

[ULA]

It sounds like the two weeks could be notice pay which is the statutory rate for your partner's length of service, however you need to check this against her contract of employment in case this is greater. If the payments made are correct it does not affect the basic award.

It also sounds like you have factored in the full 12 months for compensatory pay which as I have previously stated is at the maximum scale of what can be awarded.

The employer will be looking at this from a commercial perspective i.e. to settle the matter will it cost me less in time and legal fees then if I went to a tribunal and won. There is currently a view the cost to employers is in the region of £8k - £10k depending on the complexity of the case. If the matter is complex and the hearing is listed for several days then the costs will increase from this base. Since the employer has made some admission of guilt there may be less complexity around the issue.

So hope that gives you some perspective for your partner.

I am not readily available until the end of the week now, so if you do have any further queries I may take a while to respond.

[Lewis2020]

Good morning ULA I hope your well just a little update from today’s email from the employer

We made the settlement offer as suggested around 2 weeks ago and received a email last week saying that they were still obtaining legal advice and would contact me the following week.

This morning my partner received a email from the company rejecting the offer now stating that they fully and strongly dispute both the dismissal claim and disability discrimination claims made

They feel that yes things could have been done better but she would have been due to be dismissed anyway after the 6 months as apparently she had no prospect of real return within 6 months. ( again different to what was stated in the dismissal and appeal hearing as apparently they interpreted it as indefinitely )

They state the valuation of the claim is inaccurate even if unlikely she won the unfair dismissal case and They would strongly argue that compensation Should be reduced on the principle of POLKEY ?

They state they will strongly defend any claims brought by my partner However as a attempt to bring this matter to a close they have offered the following

£438.08 remaining sick pay entitlement
£615.48 equivalent to Basic award

total £1053..56

Any terms of settlement are subject to mutually agreed COT3 wording

We actually made the tribunal claim online on Wednesday afternoon as we hadn’t heard anything back so I'm assuming this is what’s pushed them to suddenly come back today with email

I would love your thoughts on the above if you could possibly help in anyway as usual we would be very grateful thank you

[ULA]

Even if you have submitted the tribunal claim you can still carry on negotiating in order to try and get to a settlement.

Not sure what you went in at but I can understand how they have come to their figures. So, they have now effectively offered to pay remaining sick pay up to 6 months which is in line with the policy you will need to check this is the case plus a basic award, in addition to the notice pay and holiday they owed her which has already been paid. Did you check your partner’s contract of employment, is 2 weeks correct or was the contractual notice greater?

So Polkey is a well know case whereby it was established that when an employer has been found to have acted unfairly in dismissing an employee by failing to follow correct procedure this often leads to a finding of unfair dismissal, an employer cannot argue it would have made no difference in the outcome if they had followed procedure. However, if the tribunal decides that the employee may have been dismissed anyway, they can reduce the compensatory award according to that likelihood as a percentage deduction. So, if they think a dismissal was absolutely inevitable, the compensatory award would be reduced by a full 100 per cent.

Effectively they are saying that given the situation of your partner having already been off for nearly months and the OH report which stated no foreseeable return within 6 months they have made the decision to dismiss. Even if they had followed the correct procedure the outcome would have been the same and therefore Polkey would apply and there would be no compensatory award made.

They have at least started to negotiate and this is their opening "shot". If you went in at anywhere near what you calculated at #11, I think your partner needs to come down quite a bit, however that is not my decision but getting to a settlement she is happy with is better than having this draw out for probably well over a year.

[Lewis2020]

Good afternoon ULA thank you for the detailed reply

We definitely would rather arrange a settlement instead of going through a drawn out process of the tribunal but my partner is not happy at all with the offer made and is adamant she would rather take the tribunal route and Risk getting nothing than accept the low ball offer. surly it’s going to cost the company far more than £1053 offered to fight this at the tribunal

She is actually quite insulted by the offer and also not really sure why they were so insistent on my partner making the settlement offer to begin with to then come back and now deny any wrongdoing and offer the low offer anyway and then saying the offer is just to end the process and they accept no fault.

They also started the settlement email with WITHOUT PREJUDICE AND SUBJECT TO CONTRACT looking online am I correct in that this means this offer wouldn’t be able to be discussed in the tribunal Should it get that far along with the contents Of the email ? and is this maybe why they are now saying things differently to what was originally said in the unexpected dismissal call and appeal hearing ? They have admitted mistakes were made previously and now stating they did nothing wrong

With regards to replying to them should she simply say thank you for the offer but no thank you and leave it there as they know it’s been sent to the tribunal and will hopefully make them come back with a higher offer ?

My partner personally dose not want to go back with a lower offer as she feels like they will think she’s giving up and would rather them come back and go from there or is that not recommended ?

thank you again