Dismissed due to 'unsustainable level of sickness'.

[Craigston]

Hi

I was recently unexpectedly sacked from my job of 19 years for the above reason following a long-term, 2 year illness that I've only just got over. My absences were all certificated by my doctor and my employer agreed throughout that I was doing all I could to get better and attend work when able.

Although I was off a lot when very ill, no warnings were given that my level of absence was becoming unacceptable- 'final written' or otherwise.

The reverse was in fact true with me being told on two occasions by my line manager that I had 'no sickness target to meet' for three months when trying out some new medication. Usually staff have a 4% sickness target and the long term sick are usually set 'action plans' where your absence percentage is raised to say, 6 or 8% but I had no failed attendance 'action plans' set during 2014 or 2015.

I've appealed against my dismissal and if this is unsuccessful as I suspect it will be, I intend on taking it to ACAS for early conciliation/tribunal.

Given the above facts, do you think I've a good case?

Thanks in advance for any help or advice you can give.

Craigston

[Kati]

Re: Dismissed due to 'unsustainable level of sickness'.

[MENTION=19071]teaboy2[/MENTION] and [MENTION=48758]stevemLS[/MENTION] should be able to advise here
sit tight ... they should be along soon
K xx

[SPQR]

Re: Dismissed due to 'unsustainable level of sickness'.

Yes I do think you would have a good case for unfair dismissal.

A fair disciplinary procedure should involve a warning, final warning and then dismissal. Also, the employer should take reasonable steps to look at the future - if you have just got over your illness and can continue working, there is no justification for your employer to dismiss you on grounds of ill-health.

I also think you might have a claim for disability discrimination. I don't know the nature of your illness, but it sounds that it would constitute a disability if you have been unable to work for the past two years.

[stevemLS]

Re: Dismissed due to 'unsustainable level of sickness'.

Capabiliity dismissals very often do not follow the warning paths.

Have you been off continuously for two years? If not, how much absence has there been?

The Equality Act does not protect you from dismissal?

Regrettably all your employer would need to show is that he had reasonably formed an opinion that you were going to be unable to perform your full duties within a reasonable time frame.

Did you resume full duties or were they modified in some way>

Sorry to paint the worst case scenario [MENTION=19071]teaboy2[/MENTION] is sometimes more optimistic than me.

[SPQR]

Re: Dismissed due to 'unsustainable level of sickness'.

The Equality Act does not protect you from dismissal?

The Equality Act 2010 definitely protects you from dismissal on the protected characteristics. (http://www.equalityhumanrights.com/y...ment/dismissal)

[stevemLS]

Re: Dismissed due to 'unsustainable level of sickness'.

Sorry, I should have been clearer.

It protects you from less favourable treatment.

What it does not do absolutely is to offer protection from dismissal if you are incapable of doing your job. The process is sometimes more protracted and employers have to show that they have considered whether practical adjustments to your job might enable you to do it.

With some employers they start proceedings within months, with others they are much more tolerant/understanding.

[Craigston]

Re: Dismissed due to 'unsustainable level of sickness'.

Hi

Many thanks for your replies!

I guess I've been off between 30-40% of the time since I took ill in April 2013. When I returned to work, I resumed full duties with but there were a lot of changes at work during the time I was ill such as departmental mergers etc. because of which, my duties changed a number of times.

I was well though for the last month of my employment though in which I only had 10 hours off, a point I made at my hearing. This significant improvement in my health was not taken into account at all however, and it seemed to me the decision had already been taken to get rid of me. Also, my hearing had initially been scheduled for earlier in month when I was on holiday and so the date had to be changed to one over three weeks later. I'm now verging on being back to full 100% health, despite the shock of my wholly unexpected dismissal.

I was referred to an external OH department and it was them who twice said - I guess it was a recommendation - that I should have no percentage sickness target set. This was conveyed to me by my line manager and I asked if this meant any attendance I managed would be considered a bonus. I was told yes, but I should attend work when able. This Is what I did. My illness was very variable day to day and I could have attended work for some of the days during the 2 or 3 week periods I was signed off by my doctor, but they would not hear of it - something to do with insurance is what I was told.While I understand the reasons for this policy, overall, the inflexibility probably more than doubled the time I had off.

I would welcome more of your opinions and thoughts, now I've elaborated on my case further.

Thanks again in advance,

Craigston

[stevemLS]

Re: Dismissed due to 'unsustainable level of sickness'.

I don't want to pry, can you give us an indication of the nature of the illness and the prognosis.

I ask only because if this was an acute physical matter which has been resolved with treatment over the last couple of years, that may be a different position to a chronic matter that could be considered to recur?

I'm sorry if I am being nosey.

[Craigston]

Re: Dismissed due to 'unsustainable level of sickness'.

No probs Steve.

I'll spare you the gorier details, but I had IBS, the main symptom of which, was severe abdominal pain down my right side - as well as way too many trips to the smallest room of the house!

I lost count of the number of tests I've had in hospital which in hindsight, I guess were done to rule things out.

I was eventually diagnosed last summer and the Consultant said it was post-infectious IBS (as it started following a severe bout of gastro-enteritis) and should go away in 18 months to two years. IBS is poorly understood and really, an umbrella term for a number of nasty and generally uncurable conditions which only really get better with time.

I'm glad to say thie consultant has been proved right, but I've had two years of hell trying to manage this nightmare condition with loads of drugs.

I've been feeling loads betters for the last three months though and just want to get back to work, which was the basis for my appeal. This was basically that I return to work ASAP and meet the normal 4% sickness allowance in the next year or I'll resign. Seems a perfectly reasonable offer to me but my employer hasn't called to ask me back!

I feel there has been a hidden agenda in the decision to dismiss me without any warning. My appeal is being heard in a couple of weeks, but reading between the lines, I don't think I'll be asked to return.

I hope this is enough info for you all to give your further opinions on my case which I await with great interest.

Regards

Craigston

[Craigston]

Re: Dismissed due to 'unsustainable level of sickness'.

**Bump**
Update- I've had a chat with a solicitor who advises I should progress to a tribunal as the procedure they followed to dismiss me was not fair.

My employer's own managerial procedures - of which I've got a copy - say I should have had a final oral warning prior to dismissal due to absence which I never got. I also have written confirmation that I was told I had 'no sickness target to meet' last year for three months at least and managed occupational health said in January this year that my condition should improve in due course. It now has.

Any further her help or advice you can give would be appreciated.

[Kati]

Re: Dismissed due to 'unsustainable level of sickness'.

[MENTION=19071]teaboy2[/MENTION]??

[teaboy2]

Re: Dismissed due to 'unsustainable level of sickness'.

If they failed to follow their own disciplinary procedure and if it was not in line with ACAS Code of Conduct: Grivance and Disciplinary Procedure, then yes its Unfaid Dismissal!

Given your condition their was no way they could dismiss you on capability grounds, given your condition is getting better and can be managed with correct treatments and your absence level, whilst still slightly higher than others in the short term would return to near normal in the long term. So your condition had not effect on your capability to do the job, except whilst you were still in the earlier diagnostic and treatment period which is basically what the last 2 years was.

You need to contact ACAS to bring a claim, or go through your solicitor to bring a claim.

Also what happened about your Appeal letter, did you hear anything back at all?

[Craigston]

Re: Dismissed due to 'unsustainable level of sickness'.

Many thanks, Teaboy2, for your reassuring reply.

My appeal hearing is coming up, but I'll be very surprised if they reinstate me as apparently, they never do.

Not sure if they'll cooperate with early conciliation through ACAS and I feel I'm articulate enough to represent myself at any subsequent tribunal. Is this recommended or would it be likely to affect the value of any possible payout if I don't have proper legal representation?

Anecdotally, my former employers usually pay out before it gets to that stage anyway if they can see they're clearly in the wrong.

Thanks again.

Craigston

[teaboy2]

Re: Dismissed due to 'unsustainable level of sickness'.

Many thanks, Teaboy2, for your reassuring reply.

My appeal hearing is coming up, but I'll be very surprised if they reinstate me as apparently, they never do.

Not sure if they'll cooperate with early conciliation through ACAS and I feel I'm articulate enough to represent myself at any subsequent tribunal. Is this recommended or would it be likely to affect the value of any possible payout if I don't have proper legal representation?

Anecdotally, my former employers usually pay out before it gets to that stage anyway if they can see they're clearly in the wrong.

Thanks again.

Craigston

Even if you started tribunal proceedings via your solicitor you still have to go through ACAS before you can apply to tribunal. So if the employer refused to cooperate with ACAS, it would be seen as unreasonable behavior by the tribunal and therefore go against the employer, should it get to tribunal stage.