For an employee accepting that they are no longer physically able to do a job they love can be heartbreaking.
When a serious illness or a medical condition impacts on the ability of an employee to do a job, an employer will act. Such concerns will usually be considered using the capability process.
Anita was diagnosed and treated for cancer. She returned to work at the Midlands laboratory where she had worked for 12 years as soon as she felt able to do so.
She had a phased return and was put on light duties. No reasonable adjustments or specific plans and support were ever put in place, but the manager did say Anita should let her know if she had any problems.
Over the next few months Anita made a number of minor errors with samples and she was spoken to by her manager. Anita informed her manager that after the surgery she underwent she was struggling with the physical demands of the job.
The manager said she would seek advice from HR. There was no follow up and Anita continued to struggle, her health deteriorated and she was eventually signed off work sick. Just days later Anita received a letter that informed her she was required to attend a disciplinary hearing to take place just two days later. The allegation was that a number a near misses had been raised against her in relation to samples that she had produced.
Anita did not feel well enough to attend the meeting and was unable to arrange to be accompanied to the hearing by a companion in the short time before it was scheduled to take place.
Desperate Anita contacted the Castle Associates employee support centre for help. Our representative got in touch with the employer and the hearing was rearranged.
With support in place Anita was willing to answer the allegations and attend a disciplinary hearing. However, having reviewed the case and evidence our representative believed the process was grossly unfair.
He was convinced Anita had good grounds to raise a formal grievance for disability discrimination and victimisation, she agreed, and they did so. You automatically meet the disability definition under the Equality Act 2010 from the day you are diagnosed with cancer.
The grievance letter requested the disciplinary process be suspended in accordance with the ACAS Code of Practice until after the grievance had been heard, investigated and resolved.
The employer insisted it would run the processes concurrently with the grievance being heard first and the disciplinary case after a break on the same day.
At the grievance hearing our representative, among a number of points to support Anita’s complaint, argued that she had suffered disability discrimination as the company had failed to make any reasonable adjustments when Anita returned to work after cancer treatement.
Our representative also pointed out that the company capability procedure, and not the disciplinary policy, should be used to address any concerns about Anita’s performance. It was asserted that as the incorrect policy was being used Anita justifiably felt victimised.
The disciplinary hearing then took place. In rebutting the allegation points from the grievance were presented as mitigating factors.
Anita had lost trust and confidence in the company and her desired outcome was to reach a settlement agreement that would allow her to move on.
At the end of the disciplinary hearing our representative initiated a conversation with the employer in relation to this.
It was reluctant at that stage to discuss the matter in any great detail, and our representative emphasised the benefits of resolving the matter in this way, encouraged the company give the possibility of a settlement agreement due consideration and to discuss the matter with him.
The following day our representative received a telephone call from the employer’s HR manager to discuss a settlement. Over the next week discussions took place with proposals and counter offers being made until eventually a settlement was reached that Anita was happy with. It included the disciplinary allegations being dropped.