Smokejumper's ET thread

[Emmzzi]

I think the problem is that if your behaviour was not directly caused by your disability, you may have a hard time relying on your disability to defend it, if that makes sense? So stuff "due to stress" - loads of things cause stress, not just illness.

 

If however you have a medical report that says "condition X may lead to behaviour Y" and Y was what you did, there is some mileage. eg "Condition X may lead to extreme tiredeness" and you fell asleep at your desk.

[smokejumper]

thanks Emmzzi,

 

yes medical report does show "condition X may lead to behaviour Y" and Y was what you did,

 

Also their own ohs report stated that I should not be alone in meetings.

 

So when I claim they should make reasonable adjustments to the discipline process (ie like the police lady case ) what can I say? .

 

Would a reasonable adjustment be a lesser sanction ie final written warning rather than dismissal.

 

I,ve been instructed by the tribunal to define what reasonable adjustments I could expect to be given. Although I understand, the actual onus is on the employer to come up with them. Also I read that the adjustment doesn't necessarily need to work but to consider it, it's not up to the employer to say it won't work.

 

I need to do some more revision.

 

So in theory in your role at work, if a reasonable adjustment prevented you from dismissing an employee, would you then attempt to get rid of them other ways ie; capability ( = no pension) or ill health ( costs you enhanced pension).

[Emmzzi]

A reasonable adjustment would not be the reducation of a sanction from dismissal to a warning.

 

The failure to make reasonable adjustments in the workplace, eg I don;t know, change of shift times to suit the condition better? = may be a mitigating factor.

 

So if you fell asleep at your desk *but it was partly my fault for not changing your shifts* you might get a reduced penalty.

 

If I had done everything I "reasonable" could but you still fell asleep, I might leave the penalty as was.

 

Reasonable is subjective. It might be moving you from early to late shift, but it wouldn't be putting a comfy bed in the attic for you.

 

If you should not be alone in meetings, who are you taking with you?

 

As the HR person it's not totally up to me to decide if an ill health retiral is merited. I need a very detailed and specific occ health report, and to comply with the terms of the pension scheme. Most reports I am looking for "will never be able to work again" or "Will be unable to work for X years" to make that decision.

 

If you can work again, just not in the specific job, it's be lump sum or straight dismissal, just depends. So many variables I am afraid!

[smokejumper]

Hi Phatium,

 

How are you searching for these case histories.

 

Best I can find need to take out a subscription. Balli seems to be one of thoose.

 

thanks

 

 

 

Hi Smoke an interesting ET case that may provide guidance although it was not binding is Perry v ISS Facility Services 2010 ET2500000.

Basically the ET held that an employer who had kept notes and monitored the claimant/employee's conduct should have made

reasonable adjustments as his behavior was a manifestation of his disability.

 

May be of some help to you. The ET transcript should be with the Tribunals service

[phaitun]

Hi Phatium,

 

How are you searching for these case histories.

 

Best I can find need to take out a subscription. Balli seems to be one of thoose.

 

thanks

 

Hey smoke, hop all is good i used xperthr and got the links from there. Then searched on bailii and also the trubunal site itself

one police case which was on bailii and was binding was involving an officer who was dismissed for disability related sickness' it was found to be reasonable to treat sickness related to disability separate from other sickness.

Another case it was found to be reasonable to move a non disabled person out of a role to allow a disabled person to take up that role

Another case that may help is the case of the autistic kid who went into the swimming pool, the staff couldn't deal with it so called the police who physically dragged the kid out of the water which was deemed unlawful.

Take those people with tourettes, they dont get prosecuted when they display their tourettes in public!

loads of cases on a site called bullyonline also.

i don't know if you got a brief or help from your union?

in your case i would ask that a reasonable adjustment would be to not place you in a situation/stressor where your condition would be aggravated and thus resulting in your outbursts,to remove the environment that causes you to suffer adversely.

I would ask to be placed in a role where you are not going to go off on one!

If its a particular situation, location, person that triggers the adverse reaction then you should not be exposed to it.

A bit like an asthma sufferer being exposed to dust and then having sick leave as a result of an attack.

diabetic sufferers getting aggressive and assaulting helpers and others when they are suffering a hypo, they are not prosecuted for offences.

It certainly is reasonable for your employer not to discipline you for a violent or aggressive outburst, when they had knowledge of your condition, your stressors, and the possible effect and yet they still exposed you to the risk if suffering a reaction.

I would ask to be relocated to a role where you will not suffer adversely or go on ill health retirement

[phaitun]

Its reasonable to reconsider their punishment and give cogent reasons why they imposed it. These should be detailed and balanced. Not just - its policy!

 

Its reasonable to consider redeployment in a suitable role,

 

its reasonable to consider full ill health retirement

 

its reasonable to supply a sign language interpreter to a deaf employee to allow them to function properly at work so they have the same career prospects as a non disabled employee

 

its reasonable to ignore your outbursts much the same as a tourettes sufferer would be excused

 

its reasonable to reconsider their discipline policy to take account of an employees mental health state

 

if you had a compulsion to spit as a result of a mental condition would they sack you for spitting?

 

ocd is a disability and stated cases have ruled provisions and adjustments should be considered and implemented if needed eg provision of antiseptic soap.

 

the thrust of ea law is to reduce the disadvantages allowing you to remain in a fully functional employment. If they have to adjust a policy to suit your disability then they must consider it/implement it if it is practicable. No iffs or buts!!!

 

think about what would have made things easier for you to cope with and if it would be easy for employer to adjust things

[phaitun]

The adjustment should be personal to you as an individual, they should not adopt a one size fits all approach!

 

eg with me they said a call centre had ergonomic chairs so i could go there to work. Their policy and practice was to use hot desking for all staff and there was no facility for a dedicated workstation. They still tried to send me there even though it wasn't suitable as i need a desk that goes up and down and other kit.

 

they didn't like it because i couldn't go so tried to bully me there instead

 

just shows the mentality of certain managers

[smokejumper]

Thanks Phatium,

 

Quick reply as well, you are very good at this, if you don't mind I will use all of your last post in my closing speech ;-)

 

No brief or union, so doing it all myself, still suspended and facing gross misconduct disciplinary and have taken them to tribunal as well.

 

Going to write to tribunal as had phr recently and as if i wasn't there, I mentioned this and was told I was being unfair.

 

they ordered me to expand on reasonable adjustments that I gave as possible things they could have done. I mentioned although I made these suggestions, the actual onus is on the employer, who hadn't made any adjustments at all. I even quoted acas to the judge, I think he played up the absent minded card, like Boris Johnson does. He also was easily led by the respondents barrister.

 

Oh yeah, company has in house legal department and solicitors and they represented themselves up to now, but this time they used a barrister, seems strange, what are they worried about me for ;-).

 

Phatium are you back working now and all your troubles behind you or are you still battling away.

[phaitun]

Hey smoke you can quote anything mate! My old head has gone and ive had the meds increased pending an exam with a consultant psychiatrist. I am back working and providing good value but its draining me so much as i fight the devils in my head every time i go in there.

They have conceded disability via PHR and ive got to submit my scedule of loss by end of the month. They will most probably seek to settle before full merits hearing which us scheduled for 4 days in march.

 

my paperwork is a whole lever arch file that ive kept of emails etc.

 

back to your thread you need to say that there should be a full equality impact assessment conducted in relation to their misconduct policy, this would be a reasonable adjustment.

 

Ask what training in dealing with employees with mental ill health the managers who decided your 'gross misconduct' offence and subsequent punishment/suspension had.

 

you should have had a union rrp or friend at any disciplinary, they should have offered it and they cannot refuse. That is law for all employees except for security services and one or two other agencies and armed forces.

 

has there ever been a risk assessment completed regarding your disability and work? This is a requirement under health and safety legislation. It should have been done as soon as you disclosed.

 

European law has dictated that an obese man suffering from conditions such as backache, ibs and other symptomss was disabled not because he was obese but because of the effects the conditions had on his daily life.

 

bailii is free, use it go into advanced search and use the search facility search using " " to help with your research.

 

my mental state manifested an OCD symptom where i research franticly to find info that i can use.

[phaitun]

Its also important for you to try and get hold of your organisations disability policy covering from the period of time you became disabled to the time you were suspended.

 

you will find that your employer is subjected to public sector equality duty and they are required by European Law to actually go over and above the requirements of the EA.

it is also important to note that this duty imposed a requirement on all public sector service providers and employers to fully embrace the 'social model' of equality.

 

There should never be a suggestion that you alter your routine, medication or other coping mechanism to accommodate the organisation. It is the other way around.

 

Its just ignorant managers and HR bods recruited via nepotism rather than ability that get things so wrong in the public sector.

 

remember occ health and hr work for your employer and not you, they have never got your best interests at heart.

 

it might not.be too late to get in touch with your staff associations ability support network. They may be able to help you with support also

[phaitun]

Its hard to do things alone and i admire you for that, i would have gone solo but i got lucky with union who paid for lawyer.

 

to help you determine what adjustments would help i found it easier to make a table either on computer or paper, 3 columns and wrote down the headings'

work activity

what makes this difficult

what would help stop/reduce the difficulty

 

essentially they either have to make adjustments to prevent, reduce or eliminate any hardship you face at work compared to a person without your difficulties or give you ill health retirement.

 

just as an aside i heard of a case that went to remedies hearing last week where an arthritic policeman was pensioned off on ill health, he wanted them to give him an office job as a civillian after he was pensioned off as a reasonable adjustment, they refused - he took them to tribunal and won, remedy was circa 400k in lost salary and pension. Maybe binding i will try to find out next week

[smokejumper]

Phatium,

 

You are a star, given me so much to think about, got lots of questions for you, will have to write them all down and get back to you.

 

I looked at their internal equality act and yes you are correct it is the social model they are also a 2 ticks employer but haven't kept to the requirement for that.

 

One question to start with ;-) if they don't sack me, but they are concerned I might have an outburst or attack someone ( not likely, but they think so) and therefore concerned I cannot be in the organisation, can they not just get rid of me under capability which costs them nothing opposed to ill health.

[phaitun]

Smoke, if they cant continue to employ you because you are not mentally fit to do the job then you are fully entitled to leave service on an immediate ill health pension, you have paid your pensions contributions and should be retired with the dignity you deserve. To use capability instead of ill health pension is a whole new can of worms for them to open and is fraught with many many dangers for them.

 

if they sack you because of your disability ie using capability, without making or considering reasonable adjustments, considering and discussing with you what other roles you can perform etc then they have directly discriminated against you because of your disability.

 

There is loads and loads of case law about this.

 

You have been suspended because of your disability, they have not considered adjusting their misconduct policy or even reviewed it to take into account certain disabilities.

 

They rightly suspended you to assess your mental state prior to re-deploying you at the coal face (tongue firmly in cheek here)

 

What i think has happened, and correct me if i am wrong?

 

• you got sick - (long term condition so you now fit the disability criteria)
  
• you told them about it
  
• they didnt believe you at first but erred on the side of caution and 'sent you to coventry' without giving any thought about what they could or more importantly should do for you. this makes you worse
  
• your sickness resulted in more and more sick leave and further manifestations of your condition
  
• your doctor reported on your condition
  
• they stilll didnt really believe it until their Occ Health reported on it too
  
• you were then on a 'watch list' of restricted duties but they put you in the too difficult basket and did not perform their lawful and moral duty to you because they are lazy, incompetent or both
  
• you had a run in with a manager about something, during one of your episodes
  
• the manager got scared as he knew he should have done something about it all beforehand and to cover his backisde he tried to get you sacked and said you threatened him - typical manager tactics of blaming the worker
  
• the stress made you worse so you have been on a cycle ride of good days, bad days and very bad days etc
  
• now their 'suspension' has backfired as your regulations say you cant be sacked or pensioned off whilst the investigation into misconduct is ongoing
  
• nepotism reigns and the managers all stick together
  
• you throw a spanner in the works by raising a grievance, an ET and developing a more serious mental condition because of their behaviour, this concerns them even more because the messed up in the beginning
  
• you fight them as you refuse to be bullied and beaten
  
• they just want you to go away
  

 

your suspension is an act of punishment in my eyes, i would ask what the punishment is for? Why are you being punished for being sick?

 

Why has a misconduct investigation taken so long?

 

Its simple really - you had an episode and scared a manager, they didnt deal with you properly in the first place, which is a BIG mistake for them - if they admit their mistake with you, the manager that you scared when you went off on one has grounds to sue them for negligence under health and safety laws at the very least, you have good grounds for an ET on a number of points or maybe even constructive dismissal if the stress and breakdown in relationship forces you to resign.

 

So they hedge their bets on you being a bit mad and either getting locked up for good, giving up or getting so bad that you could not defend or present your position properly.

 

thats why its taken so long, simples:madgrin:

 

I would say they are abusing the internal misconduct procedure to limit their culpability!

 

How long does it take for them to get statements, medical assessments and statements and then review the evidence to make a decision, they are making it hard for you because you are suffering from mental illness, because you have no lawyer or union helping you. Its just a game for them they think you will just go away in the end.

 

I really think you need to get some legal help at this point, not because i dont think you can manage it as you have done brilliant so far; but because a lawyer knows the procedures inside out, leaving you to concentrate on getting your 'evidence' in order and planning your next move.

 

Have you spoken with ACAS? what have they advised?

 

Have you considered what their reaction would be if you approached them with a type of settlement agreement?

i.e. you forgoe the ET with a written undertaking that you leave service with an immediately enhanced Ill health pension, compo for injuries to feelings, maybe compo for further psychiatric injury, a bit of extra compo for loss of salary and loss of pension, i think that they would have your hand off subject to their conditions being imposed on the deal. It just depends on what you want from all of this stress?

 

Alternatively as you have raised your ET based purely on discrimination, there is nothing stopping you from considering the constructive dismissal route; if i was in your shoes it would certainly be something i would want to speak to a employment solicitor about, most give a 30 minutes consultation for free. At least you would be able to see what you options are and get some clarity.

 

I am only telling you what i would do personally and not giving you legal advice. I am not qualified in employment law, i am just a bolshy, obnoxious nut case that refuses to be treated like dog dirt and does not like to see bullies get away with it

Edited January 15, 2014 by phaitun

[smokejumper]

Wow Phatium,

 

You are really helping with all this and seem to understand me more than all the professionals put together.

 

I can't answer all your points right away, too much for me to cope with straight away.

 

Although you are pretty near the mark with your list.

 

I'll attempt to answer the point about the suspension length.

 

Following the incident with manager, suspended for gross misconduct.

During suspension criminal proceedings, alleged assault which took almost 3 years.

employer wanted to wait for outcome.

during this time employer made all investigations and interviewed me.

there discipline case was ready to proceed.

My doctor told them I was not well enough to engage or even instruct someone to help me.

discipline was padded out with other allegations.

I took out et claim with 5 allegations under the disability act.

which is where we are now.

they denied disability but after instructing barrister have conceded to the fact I do have a disability.

 

they have asked the tribunal to order me to see a specialist of their choice to asses whether my claims for adjustments would have worked.

I think they have a hidden agenda, probably want the specialist to say I am well enough to face discipline, they are very keen for me to see specialist.

 

employer said they want to explore to see if my illness is reason for discipline, don't believe them as they have never helped me and don't trust them.

 

Hope this makes sense, in a bit of hurry , but wanted to reply a little rather than leaving til later.

but will be back.

 

My persona ( ? ) I liken to Bob Crow of the railways union, but he doesn't get disciplined for being aggressive.

[phaitun]

Hi Smoke, it just seems to be a standard pattern across the whole of the Public Sector. Some are worse than others.That why i am trying to help.I Hate to see people being hard done by as a result of an illness. I hate to see people being taken advantage of or bullied. I hope you can sort this out satisfactorily. It seesm you have been through hell.See the shrink, ask for an independent one to be appointed by the tribunal, not one of your employers choice!see the list below ref adjustments. What are "reasonable adjustments"?The Equality Act 2010 states that employers have to make 'reasonable adjustments' to your working conditions.The Equality and Human Rights Commission's Code of Practice on the employment provisions of the Equality Act gives guidance on the 'reasonable adjustments' that employers will typically have to make. Typical adjustments made by employers include:•allowing the disabled person to be absent during working hours for rehabilitation, assessment or medical treatment•acquiring or modifying equipment•altering the disabled person's working hours•transferring the disabled person to fill an existing vacancy•adjustments to premises, such as improving access•allocating some of the disabled person's duties to another person•assigning the disabled person to a different place of work•giving the disabled person training•providing a reader or interpreter•providing support workers•modifying instructions and reference manuals.

[Emmzzi]

Smoke, if they cant continue to employ you because you are not mentally fit to do the job then you are fully entitled to leave service on an immediate ill health pension

 

That will depend on a) the terms of the pension scheme, not all are alike and

b) the occupational health report.

 

Let's not give false hope where it is not so simple.

 

A chat with the pension administrators may be helpful. Your rep should also understand the scheme.

[phaitun]

Emmzi is quite correct here Smoke but as i know of your occupation and have knowledge of the pension scheme it is fair to say there may be a solution. in relation to occ health, as they have said you are no longer capable of doing your role, have not offered an alternative and your condition is likely to be permanent then the pension rules are quite clear. In practice though, because of litigation and government penalties being invoked if too many are ill health retired the focus ive the past few years has been to retain staff where possible.

 

Again there are loads of examples of appeals ref pensions and your occupation on the pensions ombudsman site

[smokejumper]

I'm blowed if I can find it.

 

How do I get the actual written tribunal findings for;

EMPLOYMENT TRIBUNAL - W v COMMISSIONER OF POLICE OF THE METROPOLIS et case no. 2201961/2012

 

I need it to study and present in my case, spent hours searching, can't find it.

 

ballii doesn't seem to be up to date either.

 

Probably being thick , can someone please give me step by step instruction how to find it.

 

desperately need it. thanks in advance.

[becky2585]

I'm blowed if I can find it.

 

How do I get the actual written tribunal findings for;

EMPLOYMENT TRIBUNAL - W v COMMISSIONER OF POLICE OF THE METROPOLIS et case no. 2201961/2012

 

I need it to study and present in my case, spent hours searching, can't find it.

 

ballii doesn't seem to be up to date either.

 

Probably being thick , can someone please give me step by step instruction how to find it.

 

desperately need it. thanks in advance.

 

It's not likely to be a reported case, and as it's only a tribunal case, it's not legally binding. Balii only have the EAT transcripts IIRC.

 

Ring the ET public enquiry line. You can request a copy of the judgment if it's in the national archives for a fee - I believe it's £10?

[phaitun]

It's not likely to be a reported case, and as it's only a tribunal case, it's not legally binding. Balii only have the EAT transcripts IIRC.

 

Ring the ET public enquiry line. You can request a copy of the judgment if it's in the national archives for a fee - I believe it's £10?

 

Hey Smoke Becky is correct, its not binding just a useable guideline. Get it from the ET service. It will cost you a couple of £. All you can say about it is that here is a clear example of common sense being applied to a condition not too dissimilar to yours, refer the tribunal to the case, tell the tribunal that you understand that the finding is not binding, however it is clear that it is a sound judgement and see how the tribunal receives it.

I have been looking for more cases to help and found some on bullyonline have a look and see where they may fit or support your circumstances.

hope all is good Mr smoke?

[smokejumper]

Thank you.

 

things are not too good, respondent is trying hard at moment they are saying it is unfair trial on them as people have retired and some are scared of me and don't want to attend a tribunal unless their safety is assured.

 

what a load of rubbish who do they think I am an underworld maffia boss ;-)

[phaitun]

Thank you.

 

things are not too good, respondent is trying hard at moment they are saying it is unfair trial on them as people have retired and some are scared of me and don't want to attend a tribunal unless their safety is assured.

 

what a load of rubbish who do they think I am an underworld maffia boss ;-)

 

Hey Smoke, tell them its a Court, you are not going to kill anyone. you are sick, not evil.
ask for the statements to be supplied to you so that at least you can decide whether the scaredycats actually need to attend or not!

At the end of the day you are sick, you were sick back then, they knew, didn't do anything to help, you lost it with an idiot as a symptom of your illness, you agree that you did but should not be punished because they should not have allowed that situation to have arisen. It is their failing and mismanagement that has caused all this trouble. They need to fess up, pay up and allow you to retire with what you are due. No more stress, messing about or mental torture - admit their mistake so all parties can move on. You can then concentrate on getting better.
What has the scaredycat said yours going to do?? Shout at hom/them/her????

[phaitun]

Lol its only unfair because they don't want their dirty washing outed in public.

You have a right to be heard, there is a right for justice, the vast resources if your organisation should allow for the witnesses to be present. I would guess that the witnesses don't want to go to the ET as they know the organisation is wrong, they have no loyalty to them now they have retired, if their evidence is so crucial they can ask for a witness order compelling this witness to attend.

my guess is that they cant argue against the medical evidence, the only witness they have is the one you lost it with, he has had enough of it, been paid off and is happy with his Injury pension playing golf in the sun, laughing at the organization as they attempt to cover up their misgivings, let the ET decide.

if it is crucial the ET will make an order, if not then the organization may have to concede, stay strong they are testing you that's all.

 

have you tried the pro bono people for legal advice/help? I guess you may be on benefits if you have been off for so long?

 

you do.need to get some advice even if its free 30 minutes or so.

my advice is just from my experience, from talking to my union reps and from my own (very very extensive) research, without reading your ET1 and the respondents ET3, its really hard to give definitive advice or pointers. There are legally or otherwise more experienced and qualified people looking in and providing advice also.

what has the ET said about the respondents new tactic?

is there any medical proof that you are a danger to their witness? If not get a letter from your psychiatrist to outline this and say that the respondent is using unfair tactics and behaving unreasonably!

[phaitun]

What was the outcome of the criminal charges against you? if they were dismissed or discontinued as a result of the medical evidence then i would seek to get all the papers regarding that including the Court transcript. I would then use this as evidence the organisation is trying to punish you and get two bites at the cherry, i.e they couldn't get rid of you one way so now they're trying it this way.

the burden of proof is different between civil/employment law and a criminal case but the ET may consider the fact the criminal case was booted out!

 

There may be some mileage in going to your union even if you are not a member any longer, i know the police fed subs are voluntary contributions that pay for certain extras such as legal help, the police federation still have to provide assistance to all constables even if they are not paid up members. I don't know what its like with your outfit or whether its similar? My mate who is in your mob, hasn't been in my gym for months and ive not been able to ask him, he was in with your union as he had a few problems they helped him with.

[smokejumper]

Can't answer too much of the questions at the moment as in wrong frame of mind.

 

regarding criminal case, I am still seething, luckily it's been adjourned. my barrister turned up and didn't have a clue what it was about, tried to explain as we went in to court. she blamed it on legal aid, near enough said they don't care and welcome to legal aid, this is what you get.

 

So I now have a criminal case to prepare . it's getting too much.