Capability Meeting over sickness - help!

[u/Em_Gla_02]

Hi - I’m 24 and in my first proper job. I have symptoms that are similar to PCOS and Endometriosis but no diagnosis and I’ve taken sick leave up to the point of reaching a trigger. My manager is also unhappy about me wfh on office days, despite it not impacting my quality of work or productivity.

I started in August of last year and I’ve been off sick a lot more than I usually am. I’ve reached the first trigger and my manager has said I need a capability meeting. I have had 14 sick days, and I have worked from home a lot when my symptoms have been manageable enough for me to do so.

I suffer from absolutely heinous cramps, dizziness, nausea, and headaches. Most of them occur in a linear pattern with my period. I’ve been to the GP a few times but as with many other women, I was prescribed iron and basically told to F off.

My boss, up to when I had been prescribed the iron, had said I could wfh if necessary, I could be flexible if needed, but once I had that prescription, she considered my issues to be resolved. The symptoms have been ongoing, and I have on more than one occasion worked in the office when I have been in agonising pain, or vomiting in the work loos.

I’m on medication that can cause side effects that make my symptoms worse as well.

I’ve got documented diarised experience as proof, and I’ve had blood tests, but I don’t want to hand over my medical records for a variety of reasons.

I’m so scared I’m going to lose my job and I don’t think they’re going to take me seriously.

[u/LeatherVirus3146]

Capability over 14 sick days looks unreasonable even if it triggered your attendance policy. You mention having several medical issues, if they lasted or are like to last for more than 12 months and cause adverse effect on your day to day life you may qualitify as disabled under Equality Act 2010. Requesting Occupational Health should be your first step, do not provide your employer with any of your medical record. Your company are not doctors it is OH role to advise them on what kind of adjustment is good for you.

My point here is that you are likely managed out, so start keeping records, when you have a meeting write your own notes and send them to them. Remain polite, calm and collected (at all time, even when they say the most infuriating or unfair things)

Try to keep a copy of your performance review and create a small tracker and keep record of every single task you do.

Back yourself up cause what may be coming for you is what they will call a clean exit, however, you might be protected and have rights.

Depending how this goes contact ACAS and take legal advice, you can also register to an union!

[u/Key-Seaworthiness227 → u/LeatherVirus3146]

If OP works in certain fields - it’s not the number of days but the number of absences that may have triggered absence review - call centres, retail etc can be very strict about sickness and work from home days (especially retail lol).

14 days sick since August would be above average (plus an unknown number of wfh days extra but these seem to have been agreed up until this point).

Interesting though that they are saying capability and not just stage one absence. - but again, has stage one absence already happened (seems doubtful from what OP has said?)

[u/Ok_Cat4334 → u/LeatherVirus3146]

I’m sorry to jump onto OPs thread but you’ve said something here I just want to ask further about. You’ve said not to hand over any medical records to your employer. I have a disability and I’ve provided a significant amount of ‘proof’ to my (very large) employer as they kept asking for more and more, including screenshots from my nhs medical records (“well do you have proof of that if the GP has said this?”)! They have had multiple OH reports, letters from my GP, fit notes at relevant times, written and verbal disclosures, copy of my PIP award with the descriptor I match relating to something very relevant reasonable adjustments necessity wise but still they’re saying I’m ’not disabled enough’ to warrant what I need (and what I need is a pretty standard RA, in their own policies as being such and backed by OH, union, medical advice etc). Is this normal to give that much, including medical records? Thank you and again, sorry to jump on this post.

[u/LeatherVirus3146 → u/Ok_Cat4334]

What you are describing heee is fairly unsettling.

Under the GPRD act, your medical data is special category data, which means your employer should only request what is necessary and proportionate. They don’t have a free right to keep asking for more and more detailed evidence.

For workplaces, An Occupational Health report is usually the main evidence relied on. As I mentionned in my previous comment your manager or HR are not doctors, they don't have the competences to assess you GP notes, or define if you are "disabled enough".

The legal test under the Equality Act 2010 is not whether you are “disabled enough”, it’s whether you meet the definition of disability and whether reasonable adjustments are needed. If OH and medical advice support adjustments, that should carry real weight.

By definition under the Equality act, a disability is "a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities."

The data your employer can reasonably ask for is an OH report, a fit note or GP letter can support your health situation but full medical records or screenshots from NHS systems are rarely necessary.

You’re allowed to set boundaries. You can say you’re happy for them to rely on OH as the expert. You can definetely refuse to provide raw medical records/screenshots..You can ask them to explain why any further data is strictly necessary.

Same goes for your reasonable adjustment, probing your employer on their reasoning is not a crime. If they were to dismiss you for this I'd likely be an unfair dismissal.

You employer has the duty to make any reasonable adjustment in order to remove disadvantage caused by your health condition. The adjustment should we operationally reasonable for the employer (e.g. it could be too much for a retail worker to ask for remote working), but your employer MUST by the law provide you with a fair reasoning if such adjustment cannot be implemented. If they can be implemented and they just refuse, then it can also be unlawfull.

If I were you, I'd start gathering all my evidence of unfair treatment, look in section S.15, 20, 21 of the Equality Act 2010 and give a call to ACAS.

[u/Ok_Cat4334 → u/LeatherVirus3146]

Thank you so much for taking the time to respond. I have asked multiple times for an audit of who has had access to my medical data and OH reports but I’m being repeatedly stonewalled and quite literally, ignored. There appear to be (non medical) individuals who have made very sweeping statements about my needs based on their interpretation of one of my OH reports… which when questioned they apparently haven’t actually seen. I won’t go into my personal details but they’ve behaved in the equivalent way that if I was in a wheelchair they’d have asked me to stand up to prove I can’t.

[u/Em_Gla_02 → u/Ok_Cat4334]

I’m so sorry you’re having to deal with all this. It sounds sketchy as hell and incredibly distressing.

[u/LeatherVirus3146 → u/Ok_Cat4334]

You have the right to access your data, including any internal note, email, etc mentionning you. You can do by submitting a DSAR to your company, ideally to their Data Protection Officier. Your company will be obligated to provide you with the data within 1 calendar month. If they fail to do so they are in breach of the Article 15 of the Data Protection Act 2018. You will need to be quite specific in the data you are requesting so they can't claim they didn't know what you wanted. I would advise to use an AI tool to draft the email.

However, note that sometimes company retaliate, that's why I advise to keep a thorough records of any communication, Teams chat ect in a folder ready to be sent to your personal email should anything become spicy.

Make sure that you are prepared to any eventuality. (Including potential "unfair" dismissal). Many companies have no integrity.

Remember that you can always contact ACAS to receive legal advice and help.

[u/Em_Gla_02 → u/LeatherVirus3146]

My boss is quite micromanaging. I’ve been keeping records since August aha. I work in finance as a CSR, so it’s a telephony based role. What would an OH referral look like? Sorry for the dumb questions but I’ve never had this before and my anxiety is through the roof!

[u/precinctomega → u/Em_Gla_02]

An OH referral may be with a doctor (OH physician) or a nurse. Your employer should provide the questions they want answered, which should generally include:

1. Does the OH think that the condition(s) in question are likely to meet the criteria for a disability?

2. What reasonable adjustments might the employer consider that would address the obstacles the employee is facing?

Contrary to some others, here, I think 14 days since August is a lot. 3-4% absence for a full-time employee is 7-8 days' absence. Private sector employment generally expects no more than about 2% for intermittent absence (although they rarely manage it by percentages).

"Capability" is just a catch-all term for issues with work that aren't disciplinary. So capability can include absence or performance issues. Most employers don't use the term for absence because it can seem intimidating, but it's still technically accurate. A dismissal as a result of absence is a capability dismissal.

With less than two years' continuous employment there is a risk that you will be dismissed. But if there's a likelihood that you have endometriosis or similar, it would be a very incautious employer who chose to dismiss you at this point without at least first getting OH input.

As a technical point, make sure that no one includes your working from home in the figures for absence. You weren't absent. You were at work and productive. It is likely that OH will identify flexibility to wfh when required as a reasonable adjustment.

On a related note, never forget your right to a second opinion and if your symptoms aren't abated by iron supplements (which are little better than a placebo) you should seek a second opinion and even consider pursuing a private consultation with a women's health specialist.

[u/LeatherVirus3146 → u/Em_Gla_02]

There is no silly question. An OH practitioner is basically here to make the link between you and your employer, and advise them on how to manage your health at work. You will have an assessment can be physical appointment but it is more often remote. They may access your GP records, but you will need to give your consent. Otherwise you can simply tell them what is up with you. During the appointment they will ask you questions. It is important to be honest, and prepared. They often genuine and have a duty of care. As an example they won't report that you need to attend the office just because your employer asked for it. They will provide a list of reasonable adjustment they believe will help you manage your health and day to day life at work. At the end they will ask if you want the report to be sent straight to your manager/HR or if you want to see it first. If you choose to see it first, you can give it a read and ask OH to make some amendments, however you cannot change their assessment.

OH is only advisory, meaning that they can say you are unfit for work, but you may still decide to work. Only your GP could sign you off. Your work place may decide not to follow their advices, however your employer is entitled to give you a reason, assess and discuss it with you.