Ill health capability hearing

[witsend8]

Hello,
I am asking for any help or advice on behalf of my husband who has been absent from work for 6 months.
He is very shortly due to attend an Ill health capability hearing with a view to his boss firing him, even though he still has 6 months half pay, occupational sick pay left. He became ill at work after basically being bullied and harassed by his managers and (co-workers who are good friends with managers) to the extent that he had a breakdown. We feel that their intention was to drive him out of his job because he is on a certain spine point and they wanted to hire someone to do the same job for less money and his union rep feels the same.
Anyway on his first day of absence I went into work and spoke to his boss to tell him the reason for the absence (deep depression) and his boss decided it would be good to divulge all sorts of confidential information to me about my husbands performance at work and about what other managers etc had said about him, a lot of the information had not even been told to my husband! His work have made no contact with him during his sick leave other than to refer him to occupational health and a pre ill health capability meeting. Oc health told his employer that he may fall under the equality act 2010 but a Judge at a tribunal would make that ultimate decision, and they made a recommendation for my husband to be moved into exactly the same position but in a different department. His manager decided that they were not willing to make that adjustment, even though there was a suitable post which was being manned by a temporary worker, and they are now dealing with his absence through medical capability.
He has had his contractually due payrises withheld for 2 years, he has been told that as a man he should dress a certain way, act a certain way and do his job a certain way even though none of the women were told anything , (he is the only male employee), before he became ill he was put on a pre-capability support plan despite gaining excellent observation for his work only 8 weeks before, by an external agency and despite the fact that his work is jointly done with another worker who didn't get put on any support plan. He has never had a bad review in the 10 years that he has worked for the employer. The support plan was divulged to some staff, presumably by the managers as definitely not my husband, the staff then started acting like he was incompetent and even his own assistants started joining in and completely undermining him. His manager has always insinuated that my husband was mentally disabled and even said something along those lines to me!
Before this sickness he has barely had a day off in the whole time he has worked there!
Anyway there is far too much detail to put on here, but I wanted to ask, if (there is no if really as his manager is chairing the meeting and my husband is unlikely to be able to speak as he is becoming anxious and more depressed since the letter) he is dismissed after this hearing what are his next steps? We want to go to an employment tribunal, but not sure what we can take them for, due to time limits for filing a case etc. would they allow things from more than the 3 month time limit due to the fact that my husband was so unwell?
Thanks for any guidance you can give, my husbands union rep seems a bit overwhelmed, he barely answers texts or calls and gives us no information regarding his rights etc. just turns up to any meeting with him.

[Tools]

Re: Ill health capability hearing

Thanks for posting, I know it is hard to deal with, have been there myself.

Just about to turn in for the night, have a good read around the ACAS website, particularly here > http://www.acas.org.uk/index.aspx?articleid=1864 either myself or others will post more soon.

[charitynjw]

Re: Ill health capability hearing

Hi witsend8, & welcome to Legal Beagles.

You refer to the forthcoming meeting as an 'ill-health capability meeting'.
If so, does it conform with the company policy regarding disciplinary procedures?
I would very much doubt that it does, as you make no mention of them informing your husband of the right to be accompanied, & also, the fact that the manager chairing this meeting is not impartial is very relevant.
(Even if the union rep does go with your husband, it should still be advised in writing that your husband has this statutory right if it is intended to be a disciplinary, particularly if could lead to dismissal.)

Under the Equality Act 2010, disability is defined as any longterm illness, physical or mental, which affects one's day-to-day activities.
Prepare a list of how he is affected, with corresponding medical evidence to support this.
The employer, once they are made aware of the disability, are duty-bound to try and find a suitable alternative, whether this is another available position, or some adjustment to the existing position. (Often proposed is a 'gradual return to work' period.)
The onus will be on them to prove that they have explored all alternatives.

There is also (in your post) mention of possible sex discrimination, but it is not clear on the actual details.
Has your husband received anything in writing which could be discriminatory re his gender?
What are the objections that he has regarding it?
Would there be any witnesses to verbal discrimination (& if so, would they be willing to give evidence?)

There is now a fee for bringing cases to Employment Tribunal.
Don't be put off by this; it will cost the employer considerably more just to go to ET, & if they lose...........
Also, if you are on low income you can apply for fee remission for Tribunal costs.

However, there is a long way to go before you reach that stage, though keep in mind that there are strict time limits for Tribunals (Usually 3 months less one day from the cause of action, which is commonly the actual dismissal date).
If it were me, my next move (after the meeting, if it goes badly) would be to submit a formal grievance, outlining all the detrimental things which have occurred, including said meeting.
The company grievance procedure & potential ET claim can be concurrent, so no probs with the time factor.

[witsend8]

Re: Ill health capability hearing

Hi thanks so much for the replies, unfortunately there is no written evidence of the gender discrimination it was all verbal and I doubt that the person that overheard it would be a witness. I really only wrote it to show how bad things have been for him, as I realise that it is too late to mention it in an ET. If we made a grievance about it would that reset the clock, so to speak?
They did say that he could have a representative or colleague on the letter so I assume it is all correct.

[witsend8]

Re: Ill health capability hearing

I forgot to say that he has had previous significant depression in 2002, before he started at this job, so this is why occupational health said that he would probably be covered by the equality act.
Thanks again for the replies, do you think that the list of how the depression has affected his life, would be useful at the medical capability hearing? Would a letter from his GP also be helpful?
Thing is I'm not even sure that he should be going back to that job, even if he doesn't get dismissed. They obviously don't want him there and likely will make his life a complete misery trying to get rid of him, but for some reason he loved his job and feels really upset about it all. Also we don't want him to have dismissed on his file for life!
It is obvious to me, from when his manager spoke to me on his first sick day, that he never thought it was going to get to this point. He obviously didn't say this in as many words, but I could tell that he had thought that my husband would just find another job elsewhere if he put a bit of pressure on him and everything would be good. When I first told him that my husband had, had a breakdown his reaction was, "no, no it cant have been that bad, surely", sort of speaking to himself, he actually looked really shocked.

[enquirer]

Re: Ill health capability hearing

I forgot to say that he has had previous significant depression in 2002, before he started at this job, so this is why occupational health said that he would probably be covered by the equality act.

If they knew about it - certainly.

Thanks again for the replies, do you think that the list of how the depression has affected his life, would be useful at the medical capability hearing? Would a letter from his GP also be helpful?

This is a two-edged sword. It may provide evidence of discrimination, but may also give grounds for termination on grounds of incapacity.

Thing is I'm not even sure that he should be going back to that job, even if he doesn't get dismissed. They obviously don't want him there and likely will make his life a complete misery trying to get rid of him, but for some reason he loved his job and feels really upset about it all. Also we don't want him to have dismissed on his file for life!

Now may be the time to cut a deal.

First, you need them to understand that they are in a bad position. When they are unsettled, you indicate that you won't resist if they terminate on medical grounds. You might hint that some severance pay might grease the wheels and help them to avoid the sort of problems that would arise from a discrimination claim.

When I first told him that my husband had, had a breakdown his reaction was, "no, no it cant have been that bad, surely", sort of speaking to himself, he actually looked really shocked.

Starting to worry about litigation, perhaps. This may be why they've decided to go for dismissal.

[witsend8]

Re: Ill health capability hearing

First, you need them to understand that they are in a bad position. When they are unsettled, you indicate that you won't resist if they terminate on medical grounds. You might hint that some severance pay might grease the wheels and help them to avoid the sort of problems that would arise from a discrimination claim.

Could he do that? I did wonder about a settlement, but they have not offered one so I assumed they were not willing to go that way.
They didn't know about the 2002 depression but they were notified months ago by oc health that they considered him to be covered by the equality act and we have a copy of this. His manager even stated at a meeting in front of the union rep, that he didn't accept the advice of oc health and my husbands Gp, (who both agreed) and that he wasn't willing to make the adjustment recommended of moving departments. When asked about the post that is manned by a temp (exactly the same post just a different department) he said the other post wasn't suitable as it needed stability, all in front of rep!
There is so much more, but its hard to write everything as it might possibly identify my husband.
Thanks so much again for responses, very much appreciated.

[enquirer]

Re: Ill health capability hearing

Could he do that? I did wonder about a settlement, but they have not offered one so I assumed they were not willing to go that way.

Not willingly, No.

They didn't know about the 2002 depression but they were notified months ago by oc health that they considered him to be covered by the equality act and we have a copy of this. His manager even stated at a meeting in front of the union rep, that he didn't accept the advice of oc health and my husbands GP, (who both agreed) and that he wasn't willing to make the adjustment recommended of moving departments. When asked about the post that is manned by a temp (exactly the same post just a different department) he said the other post wasn't suitable as it needed stability, all in front of rep!

You should be able to cream them with this.

[charitynjw]

Re: Ill health capability hearing

Could he do that? I did wonder about a settlement, but they have not offered one so I assumed they were not willing to go that way.
They didn't know about the 2002 depression but they were notified months ago by oc health that they considered him to be covered by the equality act and we have a copy of this. His manager even stated at a meeting in front of the union rep, that he didn't accept the advice of oc health and my husbands Gp, (who both agreed) and that he wasn't willing to make the adjustment recommended of moving departments. When asked about the post that is manned by a temp (exactly the same post just a different department) he said the other post wasn't suitable as it needed stability, all in front of rep!
There is so much more, but its hard to write everything as it might possibly identify my husband.
Thanks so much again for responses, very much appreciated.

Imho it sounds like this employer is digging himself a hole & doesn't know to stop digging.

An extremely accurate record is needed re the forthcoming meeting; if you can have it taped, so much the better, but at least accurate contemporaneous notes.

Make sure that you find out the names & job descriptions of all present, including the employer's note-taker if present.

& don't sign anything which you don't agree with; if asked, either say that you wish to read through in a less stressful place, or if possible take it away & return it asap.
That way any inaccuracies can be dealt with.

[witsend8]

Re: Ill health capability hearing

Imho it sounds like this employer is digging himself a hole & doesn't know to stop digging.

An extremely accurate record is needed re the forthcoming meeting; if you can have it taped, so much the better, but at least accurate contemporaneous notes.

Make sure that you find out the names & job descriptions of all present, including the employer's note-taker if present.

& don't sign anything which you don't agree with; if asked, either say that you wish to read through in a less stressful place, or if possible take it away & return it asap.
That way any inaccuracies can be dealt with.

Thanks for that, that is a very handy tip as he would have just signed it without reading it at this moment in time.

[witsend8]

Re: Ill health capability hearing

I just spoke to a free legal service on my husbands behalf and they have basically told me that the report from Oc health is insignificant as it is just our side of the story and would not count for anything. She also said that his employer is under no obligation to give him a different position, even if he is employed as say, a clerk and can do any clerk job, (not his real job), it is the actual post that he was in that counts. She said that he needs to forget about what happened before he went off sick as it is too long ago now and he cannot do anything about it and he has to either go back to his former position or not. She says that GP and Oc health reports are meaningless as they don't prove anything?? Is this actually the case?
I thought the stuff that happened before would count if it was continuous and the meeting that I mentioned above was only 3 weeks ago, which I thought might count as proof of discrimination.
I am really confused now, do we have no case whatsoever? I cannot believe that they can get away with this!

[enquirer]

Re: Ill health capability hearing

I just spoke to a free legal service on my husbands behalf and they have basically told me that the report from Oc health is insignificant as it is just our side of the story and would not count for anything.

Twaddle.

She also said that his employer is under no obligation to give him a different position, even if he is employed as say, a clerk and can do any clerk job, (not his real job), it is the actual post that he was in that counts.

More twaddle.

She said that he needs to forget about what happened before he went off sick as it is too long ago now and he cannot do anything about it and he has to either go back to his former position or not. She says that GP and Oc health reports are meaningless as they don't prove anything?

Even more twaddle.

[CleverClogs]

Re: Ill health capability hearing

I just spoke to a free legal service on my husbands behalf and they have basically told me that the report from Oc health is insignificant as it is just our side of the story and would not count for anything. She also said that his employer is under no obligation to give him a different position, even if he is employed as say, a clerk and can do any clerk job, (not his real job), it is the actual post that he was in that counts. She said that he needs to forget about what happened before he went off sick as it is too long ago now and he cannot do anything about it and he has to either go back to his former position or not. She says that GP and Oc health reports are meaningless as they don't prove anything?? Is this actually the case?

That rather sounds like the sort of stercus bovi that would have been posted here by someone who pretended to be a widowed and semi-retired employment barrister.

The truth was that she is/was a divorced clerk or admin-wallah in a local authority in the north of England and was no more a barrister than next door's dog.

[CleverClogs]

Re: Ill health capability hearing

he has been told that as a man he should dress a certain way,

To the left or to the right? :rofl:

[witsend8]

Re: Ill health capability hearing

Twaddle.


More twaddle.


Even more twaddle.

Thanks for that reply, I just started to really worry. Why would they say all that if it wasn't true?
I did get the distinct impression before I even started that they were sort of on the employers side, even though they didn't know who the employers were, when I told them that OH had written that my husband fell under the equality act she just said, "oh good for them", which seemed odd. We are seeing the legal people at the union of Friday so will see what they say.
Thanks again!