Disaplinary, Potential Discrimination, Not sure what to do. Need help.

[maccamac]

This is my first time posting but I think I really need some help and advice. I will try and keep it to the details and keep it short as is a bit lon winded. Trigger warning for MH/Suicide

Long story short I suffer with both Borderline Personality Disorder and Dissacoative Disorder . The latter of the two can cause serious memory loss , confusion and general not knowing who you are at times.

Recently , although unknowingly at the time, it has caused to me to lose a lot of items at work. Some money, some keys, documents etc . You name it I've probably lost it.

I don't deny that and I would have liked to participate in the investigation/disciplinary. That is where I have come into problems, my condition has seriously worsened and it led to a break down in my mental Health during the process where I attempted my own life. They agreed to postpone once, re arranged it for a pre booked holiday day where my kids were off school for inset, then re arranged for the day after once I let them know it has been booked on a holiday day. However I was still extremely unwell on the proposed date and hadn't returned home from hospital. They decided this wasn't reason enough to postpone and have carried on without me.

They offered some reasonable adjustments but none that would have actually made it possible for me to participate. I asked if it could be held elsewhere due to the likelihood of returning to the store bringing on a dissacoative episode ( can be brought on by stress) which was point blank ignored. I also asked regarding written submissions, and asked if I would be able to have someone help me understand. Again this was ignored. We even asked if they would like to refer me to Occupational Heath or if they would like anything from my GP. Again ignored.

It is also likely that my Mental Health condition has potentially countributed to me loosing everything in the first place.


They seem to just ignore completely my two conditions even exist and are not interested in the reasonable adjustments I suggest. I have also made it clear to them I am unable to understand teh process and I need help and there has been no further explanation of the process explained.

Any help or advice really appreciated.

[maccamac]

I forgot to say I have been employed for almost 7 years with a clean record of employment. Currently awaiting outcome.

[ULA]

Following up form your post I do have some further questions to assist me in providing an answer.

From what you have said it would appear that the company is going ahead with a disciplinary hearing/meeting in your absence, am I correct?

Am I also correct in the fact that you have attempted to ask for reasonable adjustments in order for you to be able to participate in this process but they have not agreed to anything you have suggested?

Have you been properly notified of of the meeting, that is given in writing details of the allegations, been provided any supporting information such as relevant documents. Were you given the right to be accompanied and details of who will be conducting the meeting from the company.

Has your firm acknowledged that the medical conditions from which you suffer could be covered under the Equality Act as a disabiliy.

If you are ok to share on a public forum how long have you had these conditions?

[maccamac]

Hello
thank you for replying.

Yes that's correct, without me. And around the reasonable adjustments I was really clearly I wanted to be able to participate and that certain adjustments would allow that to be the case , and they were not interested. Regardless of outcome I feel I've been robbed of the opportunity to speak up for myself, it was very difficult in the first place for me to cope with this with the conditions I have and they are making it impossible for me.

I was given proper notification, no supporting docs with it but don't know if there would have been any.

They have not acknowledged regarding the equality act. And my conditions were diagnosed during Mental Health Assesments during 2016 but it is believed I suffered with these from my asdolesence. They are not particularly great when it comes to this stuff, a few months ago I sprained my knee on the way home and they forced me to come into work rather than going to minor injuries and would only let me leave two hours early. I couldn't actually walk at that point and was in agonising pain, but it's drummed into us to work until we break out backs and I was to scared to speak up at the time.

Hopefully that answers the questions you had.

[ULA]

The way for you to maybe approach this with your employer would be to raise a grievance on the basis of disability discrimination in relation to the way in which they are handling this disciplinary process.

If the company has a grievance procedure then you need to follow that process, if not the "fall-back" position is to use the ACAS Code of Practice. You will need to set out in writing your grievance, provide example/s that support the grievance and what you want to see done about it as a resolution.

As an example, from what you have said, it would be based on the fact that account has not been taken of your disability in handling the disciplinary process, no consideration has been made for the reasonable adjustments you have suggest to allow you to participate in the process. You may want to make reference to the ACAS Code of Practice that sets out that an employer should follow a fair process and by not considering the reasonable adjustments, to take account of your disability to allow you to participate, this is not a fair process. You then need to set out what you want the company to do to resolve the situation. You should send this to the HR department, if the company has one, or if not a senior manager.

[maccamac]

Great thank you. I believe there is a grevence process I can use.

Should I get no where with that what would be best to do then?

And being that they have gone ahead without me, should the outcome be dismissal would I appeal as well as raise the grievance?

Again very much appreciate the advice.

I have also already offered to provide information from my GP regarding my conditions etc and they have declined to have me send it to them .

[ULA]

There will be the initial grievance meeting and outcome and then you will have the ability to appeal if you are not happy wiht the decision.

If the outome is dismissal then yes you should be given the right to appeal.

A grievance can run alongside a disciplinary.

I would suggest that you get your GP to send a copy of that to you and send it in anyway to the company, then they cannot deny that they have been made aware of your condition. When you send that in confirm that you wish acknowledgment of receipt.

[maccamac]

Okay great thank you. And just to confirm I wouldn't be needing to consider constructive dismissal or anything like that (not that I will pretend to understand it). But I see the phrase thrown around a lot online.

If I was to get no where with the appeal, is that the end of the line and I just need to accept it or is there elsewhere I could go with it?

Sorry for all the questions it is a minefield!

My line manager overseeing it has made it clear in the past he has a dim view of a mental health issues , no interest in supporting people who do etc. There has been 5 others resign in the same department over the last 6 months for not being supported by the company. One was even physically assaulted, but the grievance was not upheld and it was all brushed under the rug with the person who was assaulted made so uncomfortable they had to leave. So it just fills me with fear no matter what I do I'm fighting a losing battle.

I don't think under any circumstances now I would want to return there after how I have been treated and my GP doesn't particularly think work is something I can manage atm with my conditions, but I would also like to fight it because I do not think it is fair and I also hate the thought of doing it to others.

[maccamac]

And regarding the GP I am due to see them tomorrow so I will discuss this with them and get that sent across. I was wondering if I just should anyway.

[ULA]

Constructive unfair dismissal which is the legal terms is defined as where an employer has committed a serious breach of contract, entitling the employee to resign in response to the employer's conduct.

It can be difficult to prove constructive dismissal. The onus will be on you to prove a fundamental (rather than minor) breach of contract by the employer and you must also show that your decision to terminate your employment was in response to that breach. An employment tribunal will also need to satisfy itself that you did not delay too long in handing in your notice, which it appears from what you have said you did not. In addition, it will usually expect to see that you have tried to resolve the complaint through the grievance procedure before resigning.

So even if that is something you want to do, my opinion is that you need to demonstrate you have tried to resolve your grievance internally first.

In terms of options:

1. Yes the constructive unfair dimissal is one route.
2. If the grievance is not upheld and neither is your appeal, then you can still potentially claim disability discrimination whilst still remaining an employee. That may make life diffcult for you, however the employer would have to be careful not to victimise you, which could then become an further issue for them.
3. If you are dismissed then you may have a claim for unfair dismissal based on disability discrimination.

All of the above would require you make a claim to an Employment Tribunal via the initial process of Early Conciliation through ACAS.

At this point it is one stage at a time and what you decide to do will depend on the actions of your employer.

[maccamac]

Okay that's really helpful thank you!

So my first step now will be to put in a greivance for disability discrimination , follow that process through, as well as all appeals and then I would go from there.

Do I need to submit the greivance prior to the outcome of the disciplinary hearing , I've not heard yet. Thank you again.

[ULA]

I am not sure from your posts when the hearing is scheduled for and then based on that when you may hear the outcome.

It will all be a matter of timing. In theory a grievance can run concurrent with a disciplinary, however since the grievance is about the disciplinary process you need to work out the best time to submit this.

[maccamac]

Oh apologies, they went ahead without me on Tuesday morning. They were aware I was due to be discharged that afternoon. We had offered written submissions being that I couldn't physically be there, but they again did not respond despite chasing up. I have not heard anything yet regarding the outcome.

[maccamac]

So essentially we have gotten to the end of the process with regards to the appeal etc. In regards to my greivance they pretty much ignored all the points I raised and it hasn't really gone anywhere so I'm at a bit of a loss as to what to do next.

[ULA]

So to clarify they held your disciplinary hearing on 14 June in your absence, what was the outcome?

It seems from your post #14 that you have appealed whatever the decision was and you now have the outcome of the appeal which was what?

When did you submit your grievance? Have you had a grievance hearing yet it would seem so given you said they have ignored all your points? In which case you have the right to appeal the grievance.