Mismanagement of employee’s illness treated with expert intervention
Poor performance and attendance will always be significant issues for employers and can lead to big trouble for employees.
As serious concerns about such matters can lead to dismissal there is an expectation that they will be handled fairly.
This is what sales rep Helen expected when she was first made aware that her employer was unhappy with her performance.
The news came as a shock to Helen. No concerns had been raised previously and she had been praised for her work.
What made matters worse, was that this was shortly after the company announced it was starting a redundancy consultation process.
The background to Helen’s case is important. She had worked for the company for four years and had been unwell for a while, but was awaiting a clear diagnosis. She was off work sick on a number of occasions and given time off to attend hospital appointments.
Helen was eventually diagnosed with a long-term condition that is considered to be a disability under the Equality Act 2010. Understandably the news was extremely upsetting, but Helen was determined to continue working as she loved her job.
Helen was summoned to a meeting with her manager and a HR advisor two weeks after informing the company of her condition
She was told she had been underperforming in the last six months and given specific targets to meet in the next month. Helen was informed that if she failed to hit the targets consideration would be given to terminating her contract.
It was a shock and Helen was devastated as no performance concerns had ever been raised with her, and she had in fact been praised for her work.
The manager said he knew the news would be a shock, which is why they also arranged to have an off the record conversation with Helen
Employers can initiate such conversations by way of section 111A of the Employment Rights Act 1996 to terminate an employee’s employment rather than go through any formal process.
Helen was distraught following the meeting and she felt extremely unwell. She visited her GP and was signed off work for six weeks as a result of work-related stress.
The following week Helen received a letter informing her that her attendance in the last six months was below what was expected. She was invited to attend a stage 1 attendance management meeting.
Helen felt she was being forced out of the company because of her disability and she submitted a formal grievance.
A company HR advisor wrote back to Helen to say her grievance appeared to be mitigation in regards to her attendance. The letter said the company would not hear a separate grievance and would instead discuss the matter as part of the attendance management concern.
Helen got in touch with the Castle Associates Employee Support Centre for help.
Our representative contacted the employer on Helen’s behalf and insisted that she had legitimate grounds for a grievance, which should be heard.
After an exchange of email and telephone correspondence the company agreed to hear the grievance.
At the grievance hearing our representative argued that Helen was being subjected to unfavourable behaviour as a result of her disability, which was unlawful. The company refuted the claim and insisted her attendance and sales figures were poor.
In response our representative contended that there was no history or evidence of such concerns ever being raised with Helen before her diagnosis.
He also told the hearing that if the company was considering dismissal on performance grounds there should be evidence of meetings where previous concerns were raised with Helen, of additional support or training provided to address any such concerns and of reviews in terms of any progress made. There was no such evidence.
Helen wished to continue working for the company. Following the grievance and lengthy discussions and negotiations no formal action was ever taken against Helen.
Instead reasonable adjustments were put in place to support her with her disability. This allowed Helen to continue working, and she later earned a promotion.
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For free employment law advice or if you are affected or want information and support by any of the issues in this article please give us a call. 0333 772 0611