How Laura Donnelly, Employment Law solicitor based in our Haywards Heath office, helped a public sector employee, who was unfairly dismissed and discriminated against due to his disability, appeal so he was reinstated.
Alan was employed as a Director on a high salary at a public sector organisation.
He had been absent from work due to workplace stress caused by the lack of organisational support, a blaming and bullying culture and a lack of consultation about changes to his role following a restructure.
Alan was signed off work for several months and was diagnosed with work related stress and depression.
His employer referred Alan to Occupational Health on several occasions in order to consider his health and when he would be able to return to work. The final report confirmed that the workplace issues were a barrier to him returning but if these were resolved, Alan would be able to return.
His employer carried out a Stress Risk Assessment as recommended by Occupational Health. However, they failed to properly engage with Alan in relation to this and did not take any active steps to resolve these workplace issues.
The employer failed to understand the correct legal test for disability under the Equality Act, deciding that because Alan’s illness had not yet lasted for a year he was not disabled. In fact, his illness only had to be likely to last one year or more.
The employer had begun to implement a further restructure which meant Alan’s role would be deleted and he would potentially be entitled to a substantially enhanced redundancy package.
Rather than phasing out his role under this restructure, his employer proceeded to the final stage of their ill health capability process and invited Alan to a capability hearing where the outcome was likely to be dismissal.
Alan instructed us to act when he had received a date for this final capability hearing.
We helped him to submit a formal grievance to complain of disability discrimination on the basis they had failed to apply the disability test properly. Laura provided arguments that his employer had a duty to make reasonable adjustments for him in order to enable a return to work. Further, that dismissing him would constitute discrimination arising from disability. Also, it appeared the capability process had moved to the final stage prematurely to try and dismiss for ill health, instead of paying out substantially enhanced contractual redundancy pay worth more than £200k due to his long service.
His employer dismissed his grievances and dismissed Alan due to ill health.
We assisted Alan in appealing his dismissal by raising the disability discrimination arguments again. The aim was to have him reinstated so his role would be made redundant.
After an appeal meeting and a further Occupational Health Report, the employer upheld Alan’s appeal and reinstated him.
Alan received all back pay from the date of dismissal up to the date of reinstatement.
Alan was put back into the redundancy process and secured the enhanced redundancy pay that he was entitled to as his role was being removed from the structure.
If you believe that you have been unfairly dismissed due to ill health or you have an employee who you need to consider whether a fair ill health dismissal should take place, please contact us on 01273 609911, or email firstname.lastname@example.org.
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