Dismissed due to ill health - Capibility - Plz help

[In_need_of_advice]

Hello, this is my first time on a forum so please bear with me, I will try not to make it too long winded.

I have been employed by my employer for the last 14 years.

August 2013 I was on stage 1 of the new absence policy that had recently been put in place, (it is the standard trigger points policy), also in August 2013 my husband of 16 years up and left me no warning, he just went.
As you can imagine this total just blew me away, I am only now just beginning to get over it.

Anyway I kept working because work seemed to be the only thing that kept me going.

I had 2 weeks off shortly after, I wont go into details but the Dr wrote acute stress on sick note.
Then right before Christmas I had a week off with a cold that I got a sick note for because I knew I was on the absence plan, and then in February 2014 I had a fight with my husband this ended up with my shoulder being injured and having 1 month off sick and then 1 month on no manual handling, due to nature of job, all covered by sick notes.

I obviously had exceeded the trigger points so I had a 2nd and then a 3rd absence meeting, I was also seen by OHU.

All correct paperwork had been completed by line manager but the meetings were always quite informal and never not once did I think I would be sacked due to sickness it was also never mentioned that this would be the outcome.

I then received a huge file one day in the post and a letter saying I was to attend a formal absence hearing.
Maybe I was blind to the fact but even then I still did not think that I would be dismissed and yes it did say on the letter that dismissal could be the outcome, but I thought maybe I would get a warning on my file for a year.

With regards a union I was with GMB for my whole employment but this was always paid for from my husbands account, well in November he ceased payments, I do remember something coming in the post but at that time it was the last thing on my mind and even now my memory is hazy.

So I email my line manager to confirm I would be attending the hearing, it was to be held on a Tuesday morning during my shift as all my other shifts are 5-10. I presumed that I would of been removed from the rota for that day but the night before I get my rota for the next day and I have planned visits for my whole shift no mention of the meeting so I have to ring up and explain and try to get things changed, well I still ended up doing the planned visits because they were unable to find any other cover which in turn made me half hour late for the hearing, great start. I did ring my line manager who had booked herself out for the hearing and somehow forgotten about me to say I would be late.

Anyway the hearing went ahead, it was only me, my line manager, someone from HR and a union rep to advise the HR person.
All this time I thought that my line manager had been supportive towards me, but in the meeting she totally went against me saying
"That I was putting a strain of my collegues and that she had spent so much time more with me than with any other worker to try to support me"
I basically ended up looking awful, I did put my point of view across saying that I actually thought I was doing okay considering the circumstances.
At one point the union person said to me,
"You haven't been off in the last 3 months, is there a reason for this?"
To which I could only answer
"I hadn't been ill, so didn't need to be off "

So they left the room to make a decision, returned 10 minutes later to tell me I was being dismissed due to capability (ill health) I had to work my 12 weeks notice and so my last day of service would be 9th October.
Talk about kick someone when they are down.

I could understand if it was a small company but it is anything but that, it is the main supplier of employment in this area and as for putting my collegues under strain I think that would be due to the fact that 4/6 of staff were transferred on secondment posts and these posts were never refilled, I had also had to travel to 3 different areas in 1 shift due to there being staff shortages in the different areas on numerous occasions.

So on receiving the letter of my dismissal I send my request to appeal within the 10 working days after speaking to CAB and had acknowledgement that it had been received, I am just over a week from my last day and still I have no appeal date, nor have I heard a thing from them.

I did speak to our union rep and sent him the file to take a look at he also has not contacted me back yet, he also said that I was not a member of the union any more then he would look at the file but really he shouldn't.
So this is where I am today, I have no idea what I am supposed to do now and do not know where to get the advice I need.

They are my only employer since 2000 so will be my only reference, I will never get another job now though due to being dismissed because of sickness.

I dispute the fact that I am not capable I feel I am very capable, but circumstances beyond my control have led to this, they have not asked for my doctor to do a medical report and they even said it themselves that I hadn't been off sick for the 3 months previous.
So please point me in the right direction as to where I go from here, because I am at a loss as to where I go next.
Thank you

 

[paulears]

It does seem they followed the rules, and you knew they were doing it, by virtue of the various stages and meetings.

If they have itemised your time missed, and their summary is correct, then sadly - there's little you can do. If you have been ill one and off for a long time, and therefore unreliable, it isn't your fault, but equally, it isn't their fault. From the perspective of a business forum, the usual question posed here is "I have an employee who has been absent due to illness far too much - we can't afford to keep employing this person, and the absences cause us lots of problems - we want to be fair, so what d we do?" The answer is start the process, and keep good records - if you follow the rules, you can then terminate their employment and replace them with somebody else.

You've said that personal problems caused much of it, but that isn't relevant - the only thing being considered is your ability to do the job you were employed to do.

I'd expect them to still be able to give you a reference that says what a good employee you were, how your ability and skills were good, and that you were a nice person to employ. They may decide to simply omit any reference to your sickness record, or they could detail it accurately. Any new employer is likely to ask if you had a good sickness record, and you'd have to say no. You can't avoid this, because it's true. Please forgive me, but work is not meant to be a therapy - you had a cold, so took a week off, with a sick note? A cold? even though you knew your sickness record was in jeopardy? You got into a fight and had more time off? All these things won't be viewed as 'one of those things' by a boss. You knew the sickness monitoring was in progress but relinquished your union membership at just the wrong time.

I'm so sorry I can't be supportive here. All this makes me think that your employment is just one-sided. You want the job for the obvious financial reasons, but you don't feel any responsibility or loyalty TO your employer. If you were them, what would you think of somebody who does what you do? The circumstances were NOT beyond your control. They warned you, gave you lots of chances, yet you believed you'd get a note on your file???

It sounds to me as if they behaved very fairly about this, and gave you plenty of rope - yet you repeatedly let them down.

I'm sorry for you - but equally sorry for the employer. I wish you the very best, but perhaps your personal circumstances just make you unreliable?

 

[tony84]

Not much help but I have had 2 disciplinaries in my life, both of them I went in there and fought my corner. 1 of them I came out of with a clear record (to this day I still dont have a clue - If I would have been the company I would have given me a warning), the second I came out of in the clear also.

Dont rely on your union rep, my experience of these people is that they sign up for the free afternoon they get off every month or quarter. They are usually a bit useless.

Get everything together yourself:
How long have you been there,
How many days off have you had in the last 3, 5 10 years? - whatever makes you look good.
Have you had any promotions.

Go in there and tell them you are appealing as you want to keep your job, you have been through a difficult time you accept you have not been up to your normal good standards in terms of time off (assuming you have been all ok up until now) but it has been a life changing period of time which you are now over and you would have expected that after 14 years worth of service with the company that they would help to support you during this difficult time.

You have buried your head in the sand here a little and I think its now time to go and fight for your job if you really do want it.

Personally, I can see their point of view on this. You have been off a lot and they are a business at the end of the day. But the only hope you have here is letting them know you do want the job and assuming they keep you on the next 13 years will be like your last 13.

 

[ACS020380]

Have you got a copy of your employer's sickness absence policy? This should set out the absence management process which would usually include the timeframe for arranging appeal hearings.

In terms of the final absence review, prior to that what had been the outcome of previous absence reviews (you mention 2nd and 3rd absence meetings)? Dismissal is usually the last outcome and prior to that I would have expected you to have received previous formal warnings that also give you the right of appeal against the warning, have you had anything like that?

Without seeing your employers absence policy and the evidence they based their decision on it is difficult to comment fully.

In terms of knowing what's going on, how big is this company? Do they just have one HR person or is their somebody more senior you could approach with regards to not having heard anything since acknowledgement of your appeal? In terms of a Union rep being there to advise HR, I've never come across that before in my hr career.


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[Newchodge]

The most relevant point here is that you have not been off sick for the last 3 months. It is not right to dismiss that length of time after you were last in breach of the policy. Concentrate on that aspect in your appeal.

 

[sjbeale]

Were you given a copy of the capability policy? Have all the steps been followed? If not you need to raise that in your appeal. Usually an occ health report is obtained in capability proceedings. Sounds like it is a local authority employer? They usually do things by the book. If you are not happy with the outcome consider an employment tribunal claim.

 

[digital way]

Only one thing to chip in - a colleague used a union rep and he was superb. Completely ran rings around an employer who wasn't following procedure. So experiences vary.

 

[In_need_of_advice]

Thank you all for your responses,

With regards the first reply, i actually feel you are very rude and judgemental, you skimmed over my version of events, twisted and changed my wording and then tell me my personal circumanstances make me unrealiable.
I actually support hospital discharges to people in their own homes, so a lot of end of life care and very poorly people, this is why it was necessary to take time off with a cold as passing it to someone could potentially kill them.

Also i got into a fight?? No my husband attacked me, there is a difference here, you make it sound like i had a fight in a pub or something.

I asked for advice not to be told i am basically useless and so deserved it.

Yes i feel i was a loyal employee 14 yrs service with a number of large changes, i took a £400 pay cut a month and my pay has been frozen for idk how long, if this is not loyal then i am not sure what is.

Yes i work for the public sector and no not once did i ever hear the word capibility mentioned, i do now have a copy of this policy now but only through downloading it myself.

I have just read through this policy and it states that

" If the employee is dismissed for capibility, alternative employment must be considered within the notice period. "
Well i have not heard from anyone let alone being redeployed into another post and still no word on my appeal date. My last day of service is next Thursday and i have worked my 12 weeks notice then.

I did not mention that i am only part time and am contracted to 21 hours a week, this being because i have 3 children, so if i have a week off sick it is only 21 hours not a full time position.

Thank you for your advice some useful things for me to take to my appeal, not that it matters as i will not be in post now when the appeal gets heard, which i also feel has been left on purpose for what ever reason.

 

[ACS020380]

If you're public sector then I'd suggest writing to the HR dir explaining that you were advised on x date that you were being dismissed on grounds of capability (or whatever the exact reasons detailed in your letter confirming the outcome of your capability hearing), that you submitted your letter if appeal on x date, received acknowledgement of your appeal on y date but you have had no correspondence since then.

I'd also put that you are experiencing significant levels of anxiety as you understand your notice is due to expire next week, yet you have had no correspondence about an appeal hearing and mo discussions with regards to alternative employment.

If I was the hr director there I would be concerned about the apparent non adherence to the policies and procedures by members of my own dept.
In terms of being pt that shouldn't have any bearing, they should look at the no of hours absence vs the number of hours you are contracted to work.

Pm me if you'd like me to have a look through the policy they're using or the evidence they submitted


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[In_need_of_advice]

Thank you, very useful information.

 

[Vectis]

Thank you all for your responses,

With regards the first reply, i actually feel you are very rude and judgemental, you skimmed over my version of events, twisted and changed my wording and then tell me my personal circumanstances make me unrealiable.
I actually support hospital discharges to people in their own homes, so a lot of end of life care and very poorly people, this is why it was necessary to take time off with a cold as passing it to someone could potentially kill them.

Also i got into a fight?? No my husband attacked me, there is a difference here, you make it sound like i had a fight in a pub or something.

I asked for advice not to be told i am basically useless and so deserved it.

Yes i feel i was a loyal employee 14 yrs service with a number of large changes, i took a £400 pay cut a month and my pay has been frozen for idk how long, if this is not loyal then i am not sure what is.

Yes i work for the public sector and no not once did i ever hear the word capibility mentioned, i do now have a copy of this policy now but only through downloading it myself.

I have just read through this policy and it states that

" If the employee is dismissed for capibility, alternative employment must be considered within the notice period. "
Well i have not heard from anyone let alone being redeployed into another post and still no word on my appeal date. My last day of service is next Thursday and i have worked my 12 weeks notice then.

I did not mention that i am only part time and am contracted to 21 hours a week, this being because i have 3 children, so if i have a week off sick it is only 21 hours not a full time position.

Thank you for your advice some useful things for me to take to my appeal, not that it matters as i will not be in post now when the appeal gets heard, which i also feel has been left on purpose for what ever reason.

I think YOU'RE being unfair in YOUR reply, here's why... in your original post you simply said 'I had a fight with my husband' yet you criticise someone for mentioning it. It was only in your second post that you say you were attacked by your husband.

You also said in your original post 'I had a week off with a cold' without any other explanation. It's only in your reply that you give a reason.

You have had quite a lot of time off sick, granted not in the last few months, and you do seem to have buried your head in the sand. You also seem to have left it very late to ask for advice. You were dismissed about 11 weeks ago and given 12 weeks notice - you leave on the 9 Oct, is that right? What have you been doing for the past 11 weeks?

 

[Chris Ashdown]

What she has probably been doing for the last 12 weeks is to worry her head off waiting for a reply to her appeal and not trying to rock the boat, but that's just my view

I would make a list as far as you can of the time off sick you have had over the whole 16 years and also from the last period to today, that will be the most important one

I would have expected at least a final warning before any action for dismissal was taken, but have no experience of the Public services

My suggestion is to write up a brief history of what you have done in the past, mention the inability to work when you have a cold or contagious illness because of passing on to ex patients, and your feeling that meetings did not emphasize the seriousness of any outcome.

Good luck