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taratill
taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6339
Experience:  15 years experience of advising on employment law matters
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I was recently dismissed from my job on the grounds of incapability

Resolved Question:

I was recently dismissed from my job on the grounds of incapability on health grounds (stress and back problem). I had asked for flexible retirement as a way to help myself but no consideration had been given to this option. I recently appealed and won on the grounds that I had not been given the help that I needed to undertake my job. I have been asked to return to work on a phased return but have been instructed that I must return to work under the Team Leader and Manager that caused my stress levels to soar prior to my sickness. I have three weeks from the date of my dismissal to go to a tribunal or now that I have technically been reinstated if I hand my notice in because I know that going back to work under those conditions will be intolerable and make me ill again, would constructive dismissal be allowed and would I have 3 months in which to lodge this from the end of my one month's notice period?
Submitted: 3 years ago.
Category: Employment Law
Expert:  taratill replied 3 years ago.
taratill :

Hello my name is ***** ***** I am happy to help you today. Had you already lodged a claim with the tribunal?

Customer:

No, I had to go for an in-house appeal. I work for a council and the appeal was heard by councillors.

taratill :

Ok have you raised a specific concern about having to work with these people?

Customer:

Yes, I have been consistently bullied by these people since 2009. However, when I requested a copy of my HR file, none of this has been recorded or it was removed before it was sent to my,

taratill :

So this is not on your file any more but notes were taken at the time?

Customer:

Yes I have hand written minutes of the original meeting which I was told would be placed on my record and have all my own diarised notes of what happened and when it occurred.

taratill :

Ok this is very complex. Can you tell me what outcome you would like here?

Customer:

I wanted to return to the office I had recently been working in on a phased return or on a two day week on the flexible retirement. If this was not possible I would like to go for early retirement. However, anything that will cost the council money (early retirement) will not be considered. I am in a difficult situation and in order that I can get over the depression that I suffered as a result of the stress I need closure one way or another. They are saying to me that I need the support of these two people to get back into work on the one hand but this is not how I see it. What I feel they are doing is knowingly putting me in the position of being ill again so that they can dismiss me again.

taratill :

Ok I would suggest you submit a further grievance to the ;Council to say that the terms of the reinstatement are unacceptable because they fail to adequately take into consideration your health condition and the fact that it would be a reasonable adjustment for you to return to work on reduced hours. You should also state that they fail to consdier the fact that you have been the victim of bullying on the part of the managers involved and that if they insist you return to work for the same managers they will be in breach of a duty of trust and confidence and in breach of a duty to protect your health and safety at work.

taratill :

Yous should also make a request Under the Freedom of Information Act for all written information about youl.

taratill :

Ultimately you will be treated as resigning if you do not agree to resinstatement. Your effective date of termination would be the date of your original dismissal so you may need to quickly lodge a claim to protect your position.

Customer:

Thank you so much for this advice. I was in the position of feeling very relieved on Thusday last week when I won the appeal but when I went for my interview with HR and a Senior Manager from my department on Tuesday this week I really did feel that I was being pushed out.

taratill :

No problem make sure you put the grievance in and do come back to me in the future if you need to.

taratill :

I would be grateful if you would take the time to rate my answer.

taratill :

Thank you and all the best.

Customer:

I most certainly will.

taratill :

Thank youu.

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