Unfair dismissal, ET1, ESA et al am I wasting my time

[JulieJulieJulie]

I am in the process of completing an ET1 form and need to know what to write. Before this I really wanted advice as to whether I am wasting my time. I was dismissed from my job through medical incapacity. I have tried everywhere for help! The reason for filing the claim is for failure to make reasonable adjustments. I have suffered from migraines and anxiety for many years. I was put into a new job due to a reorganisation. I started getting more migraines. They also changed the sickness policy. I was so scared to get ill I ended up going off on long term sick. I could not attend the hearing because I was so anxious. At the hearing they stated that they had offered me job share at a home visit, this was untrue. I had asked for part time and they said no, I had 3 options (1) resign (2) agree to go on medical incapacity and a suitable reference would be agreed, or (3) the hearing would go ahead. Well it went ahead, my husband attended. I appealed against the dismissal and stated that I would be attending the appeal if they allowed my husband to attend with me, they asked me why I wanted him there, I said I would not be able to attend if he couldn't, they refused saying that the appeal 'was not a re-run of the hearing'. The appeal went ahead and the dismissal upheld. Also in my letter of appeal they said they were refusing to deal with the latter part of my letter (I can only assume it was because I'd put a heading of 'other concerns' whereas the other headings were had the word 'appeal' in the heading. They actually made me ill, had hardly any contact with me and now I am a nervous, quivering wreck unable to speak to anyone without crying. Also ESA medical assessment humiliated the hell out of me, firstly he's going to medically examine me for migraines, then he says there are no points for migraines, then he didn't examine me anyway, plus I went there with anxiety and now deep depression. There is so much more but it's too much to write here. Sorry bit emotional but HELP HELP HELP:mad2:

[rebel11]

Hi Julie

 

Welcome to CAG

 

The guys will be advise as soon as they are available.

[papasmurf1cx]

Julie

 

Sorry to hear of your condition. I am sure we will need a bit more. Have you been under the care of your GP, Mental Health Team? Did you see an Occupational Health Doctor from work? How exactly did your condition affect your health, for how long? Did it affect your day to day activities and if so in what way? What kind of work did you do and what is the status of your employer eg Public authority, private company? What exactly did you say to them, hopefully you did all this in writing and have copies of their replies? Were the Reasonable Adjustment merely for the Discipliary / Capability Hearing or were they for adapting to the work environment? Did you suggest what you thought was an adjustment that would work for you?

 

Do you have a union and if so are they involved? Have you independent insurance for employment disputes (look at Home contents cover)? Employment Disputes can get rather mucky and the process itself can be rather stressful are you ready for that?

 

That's enough for now. Watch out for SarEl who will give you great advice. However you need to give the facts and hopefully we can tease them out of you. However you may not like what you hear. On the other hand you may be embarking on an adventure you are wanting and are ready for.

[SarEl]

Agreed - we need these details PLUS your diagnosis. I am afraid migraines rarely meet the criteria for disability and as such are very difficult cases to pursue.

[JulieJulieJulie]

I worked for a local authority. I have suffered with anxiety and migraines for many years. I always managed my anxiety and my migraines as far as possible. When they changed my job my migraines got worse. My new job involved taking complaints from the general public and although it was very hard at first, I did enjoy dealing with the public. Because I had more time off sick with the migraines they called me in for health review meetings. I was so frightend to get a migraine, that they became chronic whereby I was waking up in the early hour with full established migraines. They had changed the sickness policy, but I'm not sure when.

 

In the first health review meeting I was told I could not have more than 3 days off sick within the next 8 weeks, I had no time off sick, in the second health review meeting I was told the same. Unfortunately I got sick and by the fourth day I was still sick and got in such a state that I ended up becoming highly stressed and my anxiety over took me. I had been sent to OH in January this who said I suffered from migraines and would no doubt be off in future with them but otherwise I was healthy and closed the case . In June I received a letter to go to a final hearing (my job would be at risk). I had a union rep arranged and also an equality officer had agreed to come 2 days before the hearing they then rang the day before the hearing to say it was postponed, not cancelled until I had seen OH.

 

I went to OH in July, and the nurse said they had asked if I was covered by DDA, she told me she'd had to refer me to the OH Practitioner as she did not know. I went to see the OHP on 4 August, by this time I was quite poorly. She emailed HR and asked them to rethink the disciplinary and start contact with me as I'd had hardly any contact. They contacted me August Bank Holiday weekend to go to a meeting on 2 Sept, my union rep told them to rearrange as was too short notice and so went on 8 Sept. At this meeting (supposedly informal but there were 2 managers and an HR person) they told me I could have returned to work at any time and the disciplinary would have stopped. I told them I was not aware of this and was told to read the sickness policy, I told them I had read it and that I couldn't see where it said this, I was told to ask my union rejp. I was quite confused and emailed them to ask if the hearing was going ahead and they said yes. I was doubly confused now.

 

I was going into hospital at the end of Sept, which they knew about, to have gallstones removed. I felt worse when I came out of hospital. I had a home visit on 28 Oct. I asked if I could have part time and they said no. In between this and HR officer said she had migraines and she just stayed in bed an hour longer, she also said a colleague had migraines so severe that he vomited, I asked what they did for him and they said they didn't need to as he still came into work. I had also spoken to EHRC who told me to write to them in June asking them to withdraw sickness relating to anxiety and migraines, they said NO. They also said they did not contact me whilst off sick as I'd told someone I did not want any contact (apparently they'd also arranged flowers but before the delivery date had to cancel them as I'd said I didn't want them), this is all untrue but it was in the document recommending dismissal. They also had a list of dates of meetings I'd suppposedly cancelled, which was also untrue, they'd been rearranged for various reasons and not all by me, it made me look unreliable.

 

I was asked by my union rep to send a case form in detailing what had happened so that it could go to their legal dept. I was told they would only take it on if they thought they had a 50% chance of winning. They said they were sending it last Tues so I emailed today and it has only just been sent off and the closing date for the tribunal for me is 22 Feb. I'm really sorry this is all higgledy piggledy but I am so distressed.

 

I don't see anyone as I don't go out of the house on my own anymore. I was an intelligent relatively healthy person 12 months ago. They also went back 4 years on my sickness when I'd had time off when I'd been called to appear in Crown Court which had made me really ill, but I saw OH and they put an action plan in place to get back into work on a phased basis. I'd asked for part time in Sept. then again in Oct (I was told no in Oct). But they then said at the hearing that they'd offered me job-share and that I hadn't applied for it, this is a complete and utter lie as I emailed them the same day asking for part time also.

Edited February 9, 2011 by ScarletPimpernel
Added paragraphs for clarity.

[papasmurf1cx]

Hi Julie

 

Please try and break up your longer posts with paragraphs as this makes it easier for caggers to read.

 

The best bit I read there was that you have Union advice and they are sending it to their legal department for a definitive answer and to see if proceedings need to be started.

 

Did you put in a grievance at all stating the employers actions were discriminatory? This action lengthens the process so could be a useful tool.

 

What have the union said about the time limits? Have they told you it is 22nd February as the deadline? I am pretty sure you can get a basic ET 1 in and ask for more time but the expert on here will tell you more.

[JulieJulieJulie]

Sorry, I was trying to get it all in, in one go. I actually didn't pause for breath.

 

The dismissal was on 23 Nov so I presume it's 22 Feb. The union asked me to fill in a case form which they had in their possession nearly 2 weeks ago. I was told they were sending this to their legal dept. last Tues. When I emailed today I was told it had just been sent off today and that I should put in an ET1 form.

 

Regarding the grievance, I wrote to complain about what had been said, but this was in a document for both the hearing and the appeal, does this count as a grievance. I emailed them yesterday to chase it up and was told that the director had been on annual leave and another HR person was dealing with it and it would be chased up. I had just put it in a letter, is this classed as putting in a grievance or should it have a heading of grievance.

 

I think I might be complicating things now for myself!! And possibly, for anyone reading this (no definitely).

[redandtink1]

Hi Julie I'm going through something very similar. I have been dismissed under capability from the civil service. My appeal to the Civil Service Appal Bourd is in April and I am also very stressed with it all. I know that you do only have to put in a basic ET1 before the deadline date and that then lodges your appeal. The tribunal will them let your ex employer that you have applied and then you will be in the process. I look at my evidence every day and every bit of information that I can find and it does get very confusing but I am confident that I have been unfairly dismissed. I'm not legally trained but we can maybe help each other with support.and bit we have learned

[SarEl]

To be perfectly honest, my advice has to be to follow the unions advice. In relation to your sickness there is a massive degree of uncertainty as to whether it is sufficiently severe to qualify as a disability, and it is therefore exceptionally difficult to give advice without having a clear understanding about whether this applies or not. And that does make a major difference to how strong a claim you have. If it doesn't, then unless you can prove that they have lied about contact and those meeting dates, it would probably be a weak case, because i those circumstances you aren't entitled to any reaonable adjustments or to any variance in their policy - and such policies are lawful. I recently completed the first stage of a legal challenge at ET to such policies (that was where I was when everyone was wondering why I wasn't answering much!) but it will be years if ever before this reaches a satisfactory conclusion - assuming we win! So far too late to help you, I'm afraid. If a disability does exist, then this may make all the difference in terms of refusing to consdier any reasonable adjustments. But we simply can't tell. I am sorry but I think any advice that I could give on the case would be seriously flawed on the basis that I simply don't know enough about it.

[JulieJulieJulie]

Hi, thank you, I will fill in the ET1 with basic dates. I keep going over my notes, letters, emails and think how appalling, they shouldn't be allowed to get away with this, so yes any help would be great.

[JulieJulieJulie]

Thank you anyway. I was told by the EHRC to submit a claim under 'failure to make reasonable adjustments'. I think just because you attend work and don't complain, people don't know that you have an underlying illness that you 'manage' by yourself. I never complained about anything and was really good at my job, unfortunately I don't think getting another job will be easy especially working somewhere for so long and getting sacked for being 'incapable', when you know you are perfectly capable. Most people that worked there sat around complaining about the public, chatting all day on the phone to friends and family or on the internet. Ironic isn't it.

[ScarletPimpernel]

My eyes, my eyes! The goggles, they do nothing!

 

 

I've added some paragraph breaks to make the big post above more readable.

[papasmurf1cx]

Julie

 

Have you considered whether you are entitled to a Pension? What have you been told about that? Are you in a pension scheme? If your ill health is bad enough to be long term sick that might be a fruitful way to go?

 

Also DLA Incapacity Benefit..... Middle Rate DLA opens the door to Carer's allowance for husband / partner. Have you explored these? Housing benefit?

[JulieJulieJulie]

Sorry Scarlet. I don't know if I'm using this site properly and I'm replying on 'post quick reply' and 'reply to thread' then going back to the beginning. Anyway I thought that's funny I'm sure I hadn't put any paragraphs in, it must have done it itself automatically, how clever is that! I thought I was intelligent, maybe not! At least it made me laugh.

[JulieJulieJulie]

I'm in a pension scheme, but when I asked for part time or redeployment I also asked about ill-health retirement. I was told 'no' because they would have to say I would never be able to work again. I went for a medical assessment yesterday, as part of an ESA claim, what a horrible man, felt like a scrounger, just waiting to hear if I've 'passed' the sickness test, just to get a measly few quid a week. No wonder they have a panic button in there. If I don't pass the sickness test, I don't know where that leaves me as I failed the 'capability' test at work!

[papasmurf1cx]

"I don't know where that leaves me..."

 

You are dealing with bureaucrats and that means it leaves you in an appeal scenario. Firstly asking for ill health retirement and getting a verbal 'no' is hardly the end of the matter. You need to get the terms and conditions of what your pension scheme states. For them to say that you will never work again might be only one part of the scheme eg the NHS pension scheme has two Tiers. The first is unable to do the NHS job. Thje second is to be unable to do ANY job. Both state that one must be incapable until normal retirement age. So it is entirely possible your scheme works like that.... you need to find out.

 

Employers also may have other schemes that apply... what does your union rep say is available?

 

By the way unions are notorious for F***ing it up so you HAVE to make your own enquiries. Try asking HR at your former employer!!

[JulieJulieJulie]

I totally agree with you about the unions, I don't think they have helped me as much as they could have in this matter. When I first spoke to them regarding this I was told 'it's the end of the line' and I was really shocked, he tried to backtrack what he'd said, so I suppose I knew from that moment on I didn't stand a chance. I did read regarding the pension and it did have 3 tiers, but I don't know who to speak to on this. I don't really want to speak to anyone in HR as they frighten me.

[papasmurf1cx]

Have you got the details of the pension. I am sure if it is a Public Service Pension it will be on the web somewhere. Can you name it?

[JulieJulieJulie]

It's Greater Manchester Pension Fund

[SarEl]

By the way unions are notorious for F***ing it up so you HAVE to make your own enquiries. Try asking HR at your former employer!!

 

OOO - our prejudices are showing! Some unions, in some places f**k it up! But no union is wholly useless (and I still subscribe to the notion that members get the union they deserve - no backbone in the members, no backbone in the reps!) or they wouldn't survive. I would remind you that a very large percentage of my clienst think their union is wonderful! That doesn't mean that it always is everywhere, so it does depend on whether they think their union is doing everything they can. And yes, sometimes unions don't do everything they can (or ought). But we both know that there are also times when they can do nothing, and times when the employee isn't all smelling of roses either!

 

The OP should always question and challenge whether their union is doing all they can (as should anyone - of whoever is representing them). But unions do not have magic wands either. It never rhymed all that well in the old days, but it was true - the union, united, will never be defeated. Unfortunately, these days, the union is a whole load of individuals who, for oft good reaosn, are looking after themselves and devil the the hindmost. That sort of union has no power at all - and it isn't the unions fault, it is the members fault!

[papasmurf1cx]

Here it is http://www.gmpf.org.uk/pdf/guidance_for_medical_practitioners%202.pdf

 

How old are you? The normal retirement age is 65 in this document.

 

You need to read through it and comply with the conditions. You perhaps also need to get you GP on side perhaps a consultant?

[JulieJulieJulie]

Oops, sorry the union is quite good actually, no predjudice here

[JulieJulieJulie]

Thank you very much. I've got 20 years to go.

[papasmurf1cx]

"a very large percentage of my clienst think their union is wonderful!" That's because they have you SarEl !!!!

 

It is difficult for us poor old souls that trust their union (or in my case my wife's union) will do the good and decent thin., but you are right my prejudices are showing and I should be more careful in initial post.... and give into those prejudices when it is clear the OP has been the subject of another ineffective union.

[papasmurf1cx]

Thank you very much. I've got 20 years to go.

 

That is a long time. But if your condition is a medical one it should be possible to obtain evidence of one sort or other.