Dismissal during probationary period, stating disability as reason

[wellsk]

Hi there!

I hope that someone can help me.

My husband was employed by a large retail company as a 'bench retail manager' in September 2014 with a 3 month probationary period. At the time he declared that he had epilepsy. *

He worked until the end of November when he had a seizure at work and with it some severe side effects (3 year amnesia and anterograde amnesia). He was advised by a consultant that he was unable to return to work until he had been seen by his neurologist. He was unable to get an appointment until early February. At this point they told him thar his probationary period would be extended until he returned to work. During this time he found his job being recruited for online.*

He was seen by his neuro and deemed fit for work. His employer informed him that he would need to speak to a occupational therapist before returning to work. The occupational therapist deemed him fit to return to his current job, the only provision was that he was unable to drive, however, I was willing to drive him (and that was stated in the report).

His employer then contacted him informing him that they were terminating his contract with accrued holiday pay and 2 weeks notice. Stating that as he was unable to drive he was no longer suitable for the position.

*

Is this right? Does the employer have to make reasonable adjustments? Would we have a case for unfair dismissal and disability discrimination?*

Thank you in advance!

[ssparks2003]

Re: Dismissal during probationary period, stating disability as reason

Does his contract or the job spec state that he must hold a licence or that he may be required to work at other locations.

[wellsk]

Re: Dismissal during probationary period, stating disability as reason

Hi there, thanks for your reply.
It does state that he may need to work at other stores from time to time. However there is no suggestion of how he would need to get there or driving licence.

[Guineveretoo]

Re: Dismissal during probationary period, stating disability as reason

I think he may have a case, and I would certainly look to challenge it. I don't suppose your husband is a member of a trade union?

[ssparks2003]

Re: Dismissal during probationary period, stating disability as reason

I belive that this question has been asked on another forum and I would say that the infomation that you have been provided there is pretty spot on.

[Guineveretoo]

Re: Dismissal during probationary period, stating disability as reason

Ah - sounds like you are already getting good advice. I will stand aside

[wellsk]

Re: Dismissal during probationary period, stating disability as reason

Thank you. Yes! The gentleman was most helpful.
Although I do have a quick question while I'm here...
He has been sent a cheque for his accrued holiday and two weeks notice period. We appreciate that if the dismissal was overturned by an appeal then he may have to give some of the money back. But by banking the cheque, does this mean that we're agreeing to their decision to dismiss him and therefore affect his appeal?
Thanks!

[mariefab]

Re: Dismissal during probationary period, stating disability as reason

No, it doesn't mean that you agree and there's no reason to suppose that any of it would need to be repaid.
Accrued holiday has already been earned and it's unlikely that he could appeal and be reinstated within 2 weeks of his dismissal date.
If he appeals and is reinstated they would have to pay him for the period between the end of the notice period and the date he returns to work.

[wellsk]

Re: Dismissal during probationary period, stating disability as reason

Fantastic! Thank you so much for your help.

[wellsk]

Re: Dismissal during probationary period, stating disability as reason

Thanks for all your previous advice.
He has received a letter organising a hearing for his appeal. Although they state that they're being 'fair' as because he was in his probationary period he's not entitled to an appeal? Is this true?

Also if there's any advice you can offer in relation to the appeal hearing it would be greatly appreciated!

[wildcolonialboy]

Re: Dismissal during probationary period, stating disability as reason

Is this right? Does the employer have to make reasonable adjustments? Would we have a case for unfair dismissal and disability discrimination?*

Thank you in advance!

You may well have a strong case; their own occ health consultant confirmed he was fit for work.

Instead of dismissing him, it would have been far smarter to undertake a capability procedure to explore what might be done.

Is driving central to the job? Given you were willing to drive him and adjustments could be made, the employer is extremely vulnerable legally speaking. They have a duty to make reasonable adjustments, and it looks like they didn't even try. From the information we have, I suspect they dismissed him because they felt it would simply be easier to have a non-disabled employee.

I'd encourage you to speak to a Citizens Advice Bureau as soon as possible, unless he's a trade union member (in which case speak to the union)

[wildcolonialboy]

Re: Dismissal during probationary period, stating disability as reason

Thanks for all your previous advice.
He has received a letter organising a hearing for his appeal. Although they state that they're being 'fair' as because he was in his probationary period he's not entitled to an appeal? Is this true?

Also if there's any advice you can offer in relation to the appeal hearing it would be greatly appreciated!

Well... it's true that in the probationary period they can essentially dismiss someone for any reason *except* a discriminatory one. They don't have to be procedurally fair to a probationer, but this isn't an unfair dismissal issue; it's an issue of failing to make reasonable adjustments, and disability discrimination.

He really should hammer home the point that their own occ health consultant judged him to be fit to work in that role, and that they failed to even attempt to make reasonable adjustments.

[wildcolonialboy]

Re: Dismissal during probationary period, stating disability as reason

Thanks for all your previous advice.
He has received a letter organising a hearing for his appeal. Although they state that they're being 'fair' as because he was in his probationary period he's not entitled to an appeal? Is this true?

Also if there's any advice you can offer in relation to the appeal hearing it would be greatly appreciated!

I would add, a court may well judge that a reasonable adjustment would have been for his employer to organise someone to drive him to stores where it involved travel, though he could also presumably use public transport.

The fact he was willing to make the reasonable adjustments to mitigate any disability issue (having you drive him) at his own expense weighs very much in his favour. There is no question in my mind (as someone who is a trade union branch secretary, a law student and has dealt with quite a number of disability related cases) that the employer failed in their duty under s20 of the Equality Act to make reasonable adjustments, and may have committed s15 Equality Act 2010 "discrimination arising from a disability".

They held against him a provision/criterion (driving between stores) that he was disadvantaged purely by reason of his disability, and it is a criterion where there are countless possible adjustments I can think of that would mitigate any issue that would affect performance. They should have allowed him to proceed in the job (say he gave an undertaking that even though he couldn't drive, he would always be on time at those stores either by taking public transport or with you driving him) and only then raised it as an issue if they were having repeated issues.

And even then, it would be something you raise through a capability procedure, not through a disciplinary procedure or summary dismissal. As I said above, I assess the employer to be extremely vulnerable legally speaking

[FiresideScarlet]

Re: Dismissal during probationary period, stating disability as reason

He absolutely DOES have cause to file for a Human Rights discrimination complaint. First, he has a "protected" disability under the law. Second, the employer I believe, had knowledge of this disability; furthermore, he had a seizure on the job. It is up to him now to show a "link" between the employer having knowledge of the epilepsy and the adverse treatment (discrimination by termination). Even IF the employer stated other reasons or only 1 other reason for their decision to fire him, the discrimination will override that. If discrimination is only ONE factor in the dismissal, he has a case. I live in Canada and I know all of this quite well. I had a problem myself, which of course I'm legally bound not to discuss. Look it up on the internet: "prima facie" discrimination ; "work performance negatively affected by disability", and so on. Glad to see that he's getting a hearing. Don't stop looking into this until he gets a decent settlement for the adverse treatment! It will likely be found that what the employer did was unlawful. Good luck!

Examples:

http://blogs.hrhero.com/northernexpo...ary-employees/

http://www.williamgoren.com/blog/tag...ary-employees/