sacked due to asthma ?

Hi,

I recently had a cold, but continued to work however later in the week it developed into a chest infection, Being asthmatic i knew i needed to get to the doctor ASAP so i called in sick for work explaining that i had a chest infection and was asthmatic,

I was latter sacked for attendance ( i was already on a warning following a accident that resulted in 2 months off work) during the disciplinary hearing i was told 3 times that i should have gone to the doctor on my rest day 3 days before i got the chest infection

I appealed... and again was told that as i had a common cold and was asthmatic it is reasonable to expect that i should have seen the doctor on my rest day before I got the infection ergo the absence could have been avoided

Are they allowed to say that surly that is a ridiculous statement, and would taking that day off to prevent the chest infection getting worse be covered under disability discrimination or equalities act

36 Replies

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  • How long have you been employed by the company? Do you have a full contract?

    Can you give more details about the previous accident - was it at work; were you considered culpable?

    Was there a full investigation &/or a hearing before giving you the warning? If so did you have any union or workplace colleague representation?

    You may very well have a prima facie, or at least very strong case for wrongful dismissal (a dismissal that is faulty in law regardless of circumstance or justification) but these clarifications would help.

  • i worked there for 18 months and had a full contract,

    The accident at work I was classed at blame for as they say I hadnt followed the safe system of work, despite the safe system of work document not covering what the task being done that caused the accident and have a law firm currently looking at it and believe i do have a claim against the company for the accident

    Investigations are not done as they class the return to work as the investigation

    yes meetings held where the warning was issued, no witness, but i do have copy of the notes which are accurate to the meeting

  • OK, thank for the info.

    I think you need formal advice; don't assume a lawyer will know though - either use a union (join one now if you have to!) or a specialist employment lawyer (which might cost you a chunk of any award).

    If you are claiming dismissal because of discrimination (in your case, disability as defined by the Equalities Act) then you don't need to have 2 years employment in place which helps, but you will need to prove that their dismissal is illegal, rather than unfair (ie you don't agree with their findings). Unfair requires 2 years service.

    To dismiss you, I would suggest that their previous investigations should have required a full investigation, formal hearing & a final written warning to at least meet basic requirements. A return to work interview is ABSOLUTELY NOT a disciplinary investigation hearing, so your case is strong. Any disciplinary sanction has to be within a range of reasonable responses, so that falls under the 'legal' bit.

    Here's some basic guidelines, but google ACAS grievance & disciplinary guidelines as well.

    citizensadvice.org.uk/work/...

    Good luck & I hope that's some help.

  • i was aware that there is 2 years service required, for unfair dismissal,

    the return to works basicly,

    Why was you off?

    are you fit to return?

    end of meeting

    But i feel that having asthma they have failed to make reasonable adjustments to safeguard my health, in this case the reasonable adjustment would be to allow the absence to attend doctors to seek assistance with my disability ( i hate calling it a disability )

  • I used to work as a manager, and if someone had a lifelong illness like asthma, or any ongoing problem there sickness trigger point would be raised from the standard 3 to 5 before it would trigger an investigation to allow for the fact they may need to go sick as a result of the problem,

    Your input is appreciated

  • You are right, yes. I was a senior manager in a large organisation until recently & have handled countless disciplinary processes. Once it gets into the legal world, the company might quickly find it gets very messy, especially over Equalities Act which tribunals have a very dim view over companies ignoring. From memory as well I think EA awards are open-ended so you might want to send some carefully worded correspondence pointing out perceived failure to follow a fair process, lack of a fair investigation, failure to arrange representation where sanctions were being considered, lack of appeal process (assuming so; you've not mentioned it).

    That's before you even get to it being aggravated by an EA breach.

    Obviously at this stage I only know your version of events, but you do sound to have an extremely strong case so I wish you luck.

  • there was no appeal allowed at the first meeting over the absence due to the accident, appeal was heard for the dismissal and dismissal was upheld,

    I declined a rep as the union rep there probably couldnt tie his own shoes without help and like i idiot im thinking I know how these things go

    Im thinking in the first instance of placing a post employment grievance but will call acas to get their view first

  • If that's the sum total of their investigation, then any half competent union official ought to be able to tear them to shreds. Just make sure though that you get a solid representative who knows their way around this world. Many lawyers don't & charge a lot for a rubbish service.

  • stating the meeting notes.....

    them- you had a cold all week

    me- yes but the chest infection wasnt till thursday

    them- wouldnt it be a good idea to see the doctor ealier to prevent the absence

    me- you cant go to doctor just for a cold, i went when i had a chest infection

    them- on the monday 21st you had a rest day you could have gone to the doctors then why did you wait until the 24th you could have prevented going sick

    me- on 21st i had a cold, i didnt have chest infection till the 24th

    them- but if your asthmatic you would want to prevent it going to your chest and a doctor could have prevented it

    now if that isnt pathetic i dont know what is

  • Did your employers provide crystal ball so you would have been able to see that your cold was going to turn into chest infection ? Chances are you're doc wouldn't have given you anything at the start anyway . My docs favourite words are " it's a virus " . Sorry you've been treated so unfairly

  • Just tell HR you have a recognised disability and they sacked you for being disabled. You are going to sue them and put it in the papers. I reckon you get a good payout beforehand. But go to citizens advice and start the employment tribunal

  • Have they requested doctors notes or to see your medical file, you can contact ACAS to represent you in a more formal hearing.

    Unless they are medical professionals it is not reasonable for them to give you medical advice, especially when they haven't contacted your consultant or GP. Most employees won't do this because it's costs money.

    Did they question your medical history upon employment and was your previous. Illness due to a condition, asthma or something different?

    Amy

  • i cant remember if they questioned health at start of job, i would assume probably yes. they haven't sought any information from my doctor

    its first time ive taken time off with a asthma related problem

  • Reading your meeting notes - the only treatment the doctors would give you for a infection would be antibiotics and steroids. Now these are NOT a preventative mesaure - unless you are a asthmatic who is in hospital 24/7 like me haha.

    The illness is a separate issue and has not been a problem before, if you declared asthma upon employment then they knew this may be an issue.

    They cannot comment on your actions or give medical advice in disciplinarys - unless they are from the medical profession or have seeked doctors notes or advice.

    With my experience you have grounds for a tribunal (HR background in financial industy).

    I have been in hospital for weeks, multiple days off, numerous hospital appointments and my employer cannot do much. They have all of my doctors notes that I have given them.

    If they could they would.

  • What's important now is that you get clear in your mind what you are arguing. Most ET losses come about because the claimant throws everything in the mix rather than a focused attack on poor practice, which gives the company lawyers something to get hold of.

    Conversely, a barrister told me not very long ago that she won cases like shelling peas simply because so many companies don't follow their own rules properly.

    Unless your representative disagrees, I'd suggest that you need to focus on why the dismissal was illegal, not why you disagree with it. When push comes to shove that will be a VERY important distinction.

  • thank you , ill call acas in morning, will let you know how it goes

  • Bear in mind ACAS are a mediation rather than representative organisation. They will give you excellent advice on your rights & potential options, but won't represent you.

  • Hi I emphasise with you as I went through all this with the DWP 6 years ago now. I was dismissed not through illness but because I wasn't at work and therefore not fulfilling my contract. I saw a lawyer who said that because they had made reasonable adjustments for my depression I didn't have much of a case.

    I was also told that the DWP would use £300 an hour lawyers (and I couldn't even afford any lawyer fees) and that if I lost the case they would pursue me for recompense. I gave in.

    I wish you luck in your fight and hope you do win against them. x

  • they cant sack you for sickness, they sack you on attendance just a legal loophole for saying your sick to much without getting their asses sued

    thank you

  • Yeah that's what I said! x

  • Hi Laura. I have read this string of emails as I sit up in bed with yet another prescription for steroids and antibiotics for my latest exacerbation. I am absolutely disgusted with your company. I too am a Manager and in short this action is not legal. All the advice given is correct so I won't type again here. I have a lady whom I manager with many health related issues. Trust me you can't have a meeting with no witness or representation and simply go for instant dismissal. Go public with this it's a disgrace and needs to be highlighted as the recent case of the disabled athlete and the lack of toilet facilities on a train. This is 2017 not the dark ages. Get the best representation you can. I wouldn't want to work for your company and I'm sure you don't. They need to be held accountable for their bad Management. Can you take this higher in the Company or is it a small organisation? If you can highlight this to the top. Good luck with this. I will follow your progress please keep posting so we can all help you.

    Love. Ros xx

  • Gosh , I'm disgusted at the appalling treatment you have received.

    Excellent advice from one and all here on this site again, please seek some legal advice.

    I had numerous problems with my employer regarding sickness one year. I had meetings with occupational health , Human Resources and input from my GP . The outcome was that you have to expect sudden asthma exacerbation due to seasonal change .

    You have a daunting task to face but don't give up .

    Are your ex employer aware of your damages claim against them ?

    Good luck.

    Kind regards Maryeileen.

  • acas advice, get legal advice , provided a lawyer can link the absence to the disabillity i do have a claim for unfair dismissal under 2010 equalities act :)

  • That is always a worry when you have time off due to sickness. Would your doctor blindly prescribe you with medication that you may or may not need! Most gp's wouldn't unless you have a long history of recurrent infections. Furthermore, would you have managed to get an appointment on that day if you were not ill at that point in time? We all hear and know that with overstretched services it's not always possible to get an appointment. It's good to see the responses and recommendations that you have received. It's bad enough living with this condition without the added stress of worrying about work dismissing you for being ill.

  • Hi, I worked in 1 of the big 4 supermarkets for 28 years and in the last 5 of that I developed asthma and Voral chord dysfunction. I changed roles and with working with various triggers I was unable to work for 6 months. During that time I had numerous reviews with the management and occupational health teams to discuss how to return to work but despite some silly suggestions which put me working with the triggers, it became impossible to work there. They terminated my employment on Ill health grounds which I knew they could but occupational health advised that they could not sack me under disability guidelines. Since then it is taken me 8 months to find employment in retail that doesn't have my triggers. My health has started to improve and I can get around better. I still have bad days and see a therapist for treatment on my vocal chords but life is lookingle up.

  • Asthma is covered by the 2010 equalities act and therefore classed as a disability my advice iscto get the union solicitor involved

  • good advice from union

    Employers sometimes argue that the member is not disabled because their

    condition is controlled by medication. However in deciding whether or not someone

    is disabled they must be assessed as if they were not taking their medication. So

    a member who would have severe asthma attacks were it not for their medication

    could be regarded as disabled even though their condition is controlled by drugs

    such as an inhaler. This is because asthma medication only controls the symptoms

    and does not cure the condition. The member still has asthma.

  • they should have sent you to the works doctor if they were worried..I had to go many times when I was working for Hammersmith and Fulham as a teacher as well as my colleague who suffered from Diabetes. I got so paranoid that I was paying for private certificates from the GP when I had time off, and when I had to go to hospital appointments I always asked them to give me a certificate to say I had attended. Disgusting but I won they had to endure my absences I was within my rights.

  • What country do you live in, sounds like third world company. Does your country have no laws that protect workers rights.

  • I lodged a grievance at my ex-employer's over the way they handled my asthma absences, and in retaliation I was dragged through a disciplinary and made to attend the hearing even while I was off ill following an asthma attack, the whole thing was basically made up to punish me for the grievance and to force me to leave.

    A lot of employers either don't know or don't care about asthma and the effect is has on people, we are often just a number on a spreadsheet, they just want to reduce absence down to zero so they can pat themselves on the back and say what a good job they are doing.

  • I agree totally cccc x

  • I had trouble at work over sick leave and was asked to see a company health person, when i told her i was on Symbicort, she said i was disabled, and wrote a letter to say i was fit for work but could have asthma attacks, never had any more trouble

  • healthunlocked.com/blf/post...

    Hi I am on British Lung Foundation as well which also covers asthma. They are looking for stories like yours about working with lung problems as back up for one of their actions. If you want to participate you will need to join that site and there is a link above to the relevant post. x

  • Hello, as per the previous email it would be helpful to know what were the circumstances surrounding the previous accident? Were you on a full time contract?

    Personally, I would take legal advice. Log everything in writing. As far as I am aware Asthma is considered a Disability. Did your employers know that you were Asthmatic? Souneds like you need guidance from an employer lawyer or approach the staff union or ACAS

    Good luck

  • Surely this is discrimination? Asthma is a disability and they cannot treat you more harshly than someone who does not have a disability. If I were you, I'd contact ACAS to discuss this matter.

  • Hello. I am new here and I've read with interest the comments posted here. I left work early last week because my asthma was so bad and I needed to see the doctor. Chest infection which aggravated the asthma. I do work and I have had my colleague taken away as the company want to save money. I took Monday and Tuesday off to recover as much as I could. Went back to work on Wednesday feeling better. Steroids and antibiotics were most helpful. My boss asked me if working on my own makes my asthma worse. Now I am concerned that he is looking for an excuse to get rid of me. I've not had time off in 14 months. Most times my asthma is under control but there are times when I get bad. As mentioned I am worried that he might use this against me. Yet the company knew I had asthma when they took me on and I've never used it as an excuse to pull a sickie. I've never hidden the fact that I've got asthma from any company I've gone to. I did forcefully tell him that working on my own did not contribute to making my asthma worse. I do not use it as an 'excuse' and I will not allow him or my company to do that either.

    Thank you.

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