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Capability dismissal


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Hi does anyone have any advice. I returned to work in May this year on a phased return & amended duties. This was going okay until 4 weeks ago when my manager said I had to start doing my own job and answering the phones. The first couple of weeks were okay as I only did mornings. Last week I did 2 full days and 2 mornings. By the Thursday lunchtime I was totally shattered mentally & physically.

I had an appointment on Friday with a rehabilitation consultant at a local Nuerological clinic. The Doctor there stated I was not mentally fit to do my own job yet or work full-time at the minute. She has referred me for assessment by a neurophycologist. She sent me a letter to give to my employer. In the meantime I was told to go back to my GP and get a fit note stating phased return & amended duties. I am not at work as my Employer has stated there is nothing with amended I can do and no other positions available. He also hinted a may be finished under the capabilities act. Help what do I do, will my loan & car payment protection still pay out if I get sacked.

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Hi Jan

I'm a new member and this is my first posting but I strongly feel that I need to try to help you. I run my own HR / Personnel services company and have 15 years experience in various HR Manager jobs!

If your manager tries to dismiss you under 'capability' he is potentially acting unlawfully. He must do everything possible to try to accommodate you especially as you may well be considered to have a disability. To dismiss you as a direct result of your illness would potentially be unlawful. He must try and find you alternative duties; reduced hours etc or any other work patterns that might help you settle back into the workplace whilst you make a full recovery. This all used to be under the DDA (Disability Discrimination Act) but that has just been repealed and replaced by the Equality Act which is likely to make your case stronger. That's not to say that once he has exhausted all potential possibilities that he could not ultimately fairly dismiss you but generally that would be a lot longer way down the line! Basically if he continues in this vein you need to contact ACAS, your Union (if you have one) or solicitor. Kind regards LanaH XX

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What Keith said. You cannot be discriminated against because of your disability, and it IS a disability having had an SAH (although I'm no specialist, I'm just saying!!).

This is what worries me about working: living on benefits is no joke but the doctors say I'm not ready to go back to work and I know I'd crash and burn very quickly :(

Good luck!!

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Thanks all for you're replies. I have already spoken to ACAS regarding my employer saying they have no jobs with amended duties or another position. They said they can't make jobs up and seem to have acted fairly (not the answer I was expecting). As for CAB I have tried to ring 3 of my local offices, and have been unable to get a reply. My HR Manager rang me on Thursday evening with an offer of a compatibility agreement, which in effect they offer me some money to finish and I sign an agreement to not take them to a tribunal. They need an answer tomorrow, I know it's not much time, bit I'm seriously thinking about taking it. Anymore more help would be grateful, I'm just scared if I don't take this then they finish me and I may end up with nothing. I can't be bothered with fighting for months and ending up with nothing. At least this way, I'll have a little nest egg, and I mean little. But it will help me out for a few months.

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Hi Jan

Are you a member of a union? I had a very similar experience to you (I work for the NHS!) when I returned to work last December, 9 months post SAH. My return was being overseen by Occupational Health and the doctor envisaged my return to take up to 6months. I was to start on 6 hours per week, over 2 days and not to be consecutive. this for the first month. I was to start with taking on a few duties, consolidating this before taking on more. However, my manager had other ideas! She ignored the advice from OH and was demanding that I return to 35hours per week, (even though one of his reports stated that she may be in breach of DDA!) full duties and full shift pattern by the end of 12 weeks. She put me under huge pressure and after being back at work for 11 weeks I was signed off with work related stress and it took me 4 months to recover. The OH doctor would not let me return to work in that office and my manager and office supervisor are the subject of a grievance enquiry.

I couldn't have got through all this without the support of my union official. He came with me to all meetings, spoke on my behalf and his advice has been invaluable. Unfortunately we are at the mercy of our supervisor's personality. If they are supportive and have empathy then a return to work is just the best thing! I have now returned to work and worked in the admin office of our psychological services department on a temporary contract. The head of service has worked hard and managed to get me kept on here permanently because he has seen in me a hard worker who is very capable! I have had tremendous support from my admin collegues and my confidence is slowly coming back. Some of the psychologists, who didn't know of my illness, were actually surprised and have said they would have had no idea that I have had a brain injury!

LanaH it is so good to have an HR person to advise. I have had to fight my own HR department who, with my manager, have tried to get the OH doctor to agree that I was incapable. He told me this himself and also told me that he had advised them that if they continued down this road then they would be looking at a tribunal. They wanted me sent for psychological testing, he also advised them that they would have to be able to justify the cost, of approx £1200, because he couldn't! He actually told me that I would probably have enjoyed it because it would show me just how capable I am!

I reallly would urge you to think about joining a Union, you can join online and as soon as the first payment leaves your account then you are covered. Remember that some people rely on their staff's ignorance in employment law! Also, if you were already back at work and doing some duties why can you not return to them?!

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With regards to the problems telephoning the CAB; I've heard other complaints of this nature...

One way around it would be to attend the drop in centres. Some CAB's have these daily. You don't have to make an appointment and at least you'll see someone face to face.

If necessary, they will arrange an appointment for you to see a specialist adviser who can look into matters for you.

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Hi Liz D

We don't have a union. As if today my HR Manager has not contacted me again. I have been able to speak to CAB, who have said not to sign anything until I have had some legal advice, which my company are supposed to pay for. I have also had an e mail this afternoon from my HR Manager saying he has got some stuff sorted with the legal sept, and he is just waiting to speak to my Senior Manager and he will contact me either way (whatever that meant). We also don't have any Occ health, so have done my phased return & amended duties through, HR, my very unsympathetic manager and myself.

I will keep you all posted on what happens.

PS I'm also now on Amptipyline for my depression.

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Hi Jan

Thank goodness for the CAB! I've no idea what company you work for but my sister worked for a private firm and she had access to legal advice through some scheme that they ran. But it also covered family members. My husband is a civil servant and they have access to all sorts of legal advice (not civil service lawyers) and other services but it also covers family members. My youngest son got counselling through it when he was struggling to deal with what happened to me. So maybe it would be good for you to investigate what your company offers you, you need someone to be looking at things from your side!

I know what it's like to have to deal with an unsympathetic manager, do you think if it were a member of their own family going through this, they would be so horrible!

I hope when the tabs start to kick in that they help, take care.

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