Good recovery from ill-informed disciplinary outcome
Published 02 December 2020
Following a disciplinary hearing Josie was dismissed for failing to comply with company policy.
The data analyst was unwell on two occasions and asked her husband to notify her employer.
This was found to breach the absence reporting policy, which said that the employee should provide the notification.
On the face of it, given the nature of the allegation, the sanction seems grossly unfair and unduly harsh.
But just seven weeks earlier Josie had been given a final written warning for being absent without leave.
Josie, who had worked for her employer for just under five years, believed her treatment amounted to an unfair dismissal.
She felt strongly that her long running mental health problems had not been given the consideration merited. At the disciplinary hearing Josie provided details of her struggles.
Josie contacted the Castle Associates Employee Support Centre for help.
She informed our representative that she had suffered long-term with stress and anxiety, which had caused severe emotional anguish in the months before she was dismissed.
Josie felt that her symptoms were exacerbated by a lack of support from her manager and the company.
She explained that she had previously had time off because of poor mental health, but did not receive any support on her return to work.
Upon reviewing the disciplinary outcome letter, our representative noted that the employer was claiming to be unaware that Josie had suffered with her mental health.
Josie submitted an appeal letter to instigate the disciplinary appeals process.
When she was initially dismissed Josie’s desired outcome was to be reinstated.
She later felt it would be impossible to return, as she would never be able to trust management again. So, Josie wanted to reach a settlement agreement with her ex employer.
Prior to the appeal hearing our representative requested a range of information from the company.
It included a copy of Josie’s absence record and return to work interviews after sickness absences. The company provided the absence record, but admitted it had no documented records of return to work interviews.
At the appeal hearing our representative argued that the employer did not properly and fairly consider the impact of Josie’s poor mental health.
The hearing was told the symptoms of stress and anxiety, can affect the sufferer physically, mentally and how they behave.
Symptoms Josie suffered with were explained. The appeal hearing chair was also presented with reports from both her GP and counsellor.
Josie’s absence record was highlighted. It showed in the year before her dismissal she had a total of three months off because of stress and anxiety.
The lack of any documented return to work interviews, support or adjustments to assist Josie was highlighted as a failure in an employer’s duty of care.
Our representative said Josie’s long running mental health problems could reasonably be considered a disability under the Equality Act 2010.
He highlighted the periods of illness to show the employer was aware of her poor mental health, and therefore should have provided meaningful support.
It was added that the company should have considered reasonable adjustments, which could have included changes to how Josie reports absences when having a mental health crisis.
The hearing was told the failure to put any effective support in place put Josie at a disadvantage
Our representative said it can be evidenced the employer did know of Josie’s poor mental health, failed to provide any support and dismissed her for reasons directly related to her mental health, so her treatment could be considered unfair and discriminatory.
The appeal hearing chair and HR advisor asked Josie a number of questions about her mental health. When they asked about her desired outcome it initiated a discussion about a settlement agreement.
An agreement was later reached which meant Josie received a five-figure payment, a large part of it tax free, and it was agreed that it would be recorded that Josie left the business.