Unfairly dismissed for poor performance when ill health is to blame
Published 13 March 2019
Being sacked from a job can be a huge shock and when it’s the result of unlawful treatement it is even worse.
Fatima, a restaurant worker for just under five years, was dismissed for poor performance following a disciplinary hearing.
She suffers with Epilepsy, which was key in her alleged poor performance. Fatima had also suffered a couple of seizures in work, the last one being four months before she was sacked.
Epilepsy can be considered a disability under the Equality Act 2010. The Act makes it unlawful for an employee to be discriminated against because of their disability.
In the months before her dismissal a change of medication had helped and although Fatima suffered some side effects, she believed she had made significant improvement.
Following Fatima’s last seizure in work her employer, part of a regional restaurant chain, had been provided with medical reports to help it make informed decisions on how best to support her in the workplace.
The company failed to follow the advice and guidance in the reports and deemed that Fatima was not performing her duties to the level expected.
When Fatima was first invited to attend disciplinary hearing she submitted a formal grievance on the grounds of disability discrimination. The company refused to hear the grievance and said it was mitigation that should be presented to support her case.
Fatima attended the disciplinary hearing on her own. The disciplinary outcome letter stated the reason for dismissal was on the grounds of capability due to ill health.
Fatima was distraught and she contacted the Castle Associates Employee Support Centre for help.
Our representative was immediately concerned about the employer’s response to the grievance. He submitted a disciplinary appeal letter on behalf of Fatima.
When he contacted the company it insisted it had been fair and that it had been advised by the company solicitor throughout.
The restaurant management was adamant that any claims of disability discrimination will be dealt with as part of the disciplinary appeals process, as it was not prepared to hear a separate grievance.
Fatima had colleagues who had become valued friends and initially her desired outcome was to be reinstated. However, by the time of the appeal hearing she had decided that she did not wish to return to work.
After discussions with our representative Fatima believed a settlement agreement would be the best outcome for her.
Prior to the appeal hearing our representative requested information from the employer that he believed would help Fatima achieve her desired outcome.
Having reviewed the medical reports he noted that among the recommendations contained within them was that the company make a number of reasonable adjustments and carry out a risk assessment.
Our representative asked the employer for the evidence to show that it had done so. It failed to provide any such evidence prior to the appeal hearing.
In preparing for the appeal hearing our representative also requested additional information from the company.
In doing so he discovered that it had a capability policy with guidelines and a process to follow to address concerns about an employee’s poor performance as a result of ill health, which it had not followed.
Along with the restaurant’s handling of Fatima’s grievance, its failure to follow recommendations in medical reports, adhere to its own capability policy and the disciplinary decision, our representative had enough evidence to demonstrate that Fatima had suffered disability discrimination, been unfairly dismissed and treated unjustly.
At the appeal hearing the company refuted the representations made by our representative, it was defensive, insisted it had done nothing wrong and that it had treated Fatima fairly throughout her employment.
Following a break in the hearing, the appeal chair said he had sought advice from the company solicitor. He asked if Fatima and our representative would be prepared to have an off the record conversation.
That discussion and subsequent discussions eventually led to a settlement being reached. For our representative the tax free payment in the agreement was highly unusual, as what the company offered was more than what Fatima had said she was prepared to accept.
Fatima quickly found alternative work with an extremely supportive employer. The change of Fatima’s medication did prove successful and she was seizure free for over 12 months.
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