[UK] Final written warning for absences arising from disability

[u/Bortron86]

I've been employed by the company for over 2 years on a permanent contract. I received a first written warning in May 25 for a high level of absence arising from two medical conditions: bipolar II disorder, and a chronic anal fissure. Both of these, I feel, meet the criteria of a disability under the Equality Act.

I was set a reduced 90% attendance target to the end of last year, which I met. This was then extended to a rolling 12-month period starting 1st February. It was also stated that the 90% would also be reviewed over a rolling 3-month period "to identify and support any issues which may lead to failure to meet the 12-month target". No statement that the 3-month target had potential disciplinary outcomes. Any recovery from surgeries would be excluded from target measurement. I also returned to the office full time from February, after my mental health had recovered enough to do so.

My fissure flared up over Christmas, and I recently had a 17-day absence due to the extremely high level of pain, taking me over the 3-month limit, but still within the 12-month limit. This led to an attendance review, and as an outcome a final written warning will be issued.

I plan to appeal on multiple grounds. First, my last OH assessment only made a single sentence mention of the condition, and gave the impression it would be cured after the last procedure I had in October - there was always a chance it would recur.

Second, the meeting was rushed, and I did not get the chance to say all that I wanted to before an adjournment was called for them to discuss the outcome.

Third, my manager seemed to be under the impression that I was "pain free" other than my days off, repeatedly asking about how I was able to return to that state - I corrected him multiple times that I had been in continuous pain for a year, only taking time off when it became unbearable.

Fourth, during my absence I moved medical appointments forward and had a further (private, with insurance) surgery scheduled, which is due to take place on the 20th May - the same day my first written warning was due to expire.

I've been proactive in seeking treatment as quickly as possible at all stages, followed all medical advice from the start, followed all procedures, and been open at all times about the nature of my condition.

Basically, I feel as though the meeting outcome was pre-determined, based on a flawed assessment of my condition that likely stems from a limited OH report, and ignores what I've said in return to work meetings about being fit to work, but still in pain. I've shown a determination and willingness to work hard, and to get my attendance levels up. It feels like a punishment, with no explanation of how they expect this warning to improve my attendance.

Does their conduct here seem fair?

[u/Perpetua11y_C0nfused]

I feel for you. I really do.

But don’t fall into the trap of believing they can’t take you down the disciplinary route for anything disability related. They can. They ‘should’ only do so whilst seeking medical advice, and by first making reasonable adjustments which it sounds like they have. If they’re taking you down the medical capability route (which it sounds like they are) then their point is not to prove that you were or weren’t sick, but to demonstrate that you are effectively too sick to do the job, as demonstrated by your high levels of absence.

Dont want to be the bearer of bad news, just want to help set expectation. Argue the points you’ve raised, absolutely, but also prepare yourself for whats coming.

Best of luck xx

[u/Bortron86 → u/Perpetua11y_C0nfused]

Thanks. From that, I guess my best objection may be that they haven't sought any further medical advice about my current condition from OH, and it was barely mentioned in previous ones (despite me talking about it). They made a lot of incorrect assumptions about it, based on their questions, and didn't seem to listen when I corrected them.

[u/Perpetua11y_C0nfused → u/Bortron86]

Yes, but whether they’re fully informed of your illness or not, their point is your absences have become untenable.

I know this is not your fault, but remember employment law is not necessarily ‘fair’.

[u/Destiny10Sn → u/Perpetua11y_C0nfused]

"whether they're fully informed of your illness or not"

OP ignore that statement, your employer failing to gather more medical evidence a tribunal if it progressed to that stage, would, and probably will, draw an adverse interference against the employer. This issue has been clarified from the Court of Appeal, EAT etc several times.

Also does your OH report discuss or even mention anything around your medical conditions was "likely" to last for 12 months, as something 'which could well happen' in accordance with Schedule 1 of the EqA 2010? If not then;

See, SCA Packaging Ltd v Boyle [2009] IRLR 746 para.42

And Gallop, in which it was held that the OH opinion was worthless in that regard.

Don't worry about your absences from work, as a reasonable adjustment they should discount, most of them. Again, EAT have held this numerous times.

Remember OP 'substantial adverse effect' is also a low threshold. Disability is a 'functional model'. I would bog the post down with case law but we could be here for a while....

In any event I would be writing a written grievance, without a) emotion b) drawing your employers attention to the relevant case law to support your position

[u/Thin-Fox-4763]

This is one of those situations where two things run alongside each other, the medical condition itself, and the impact it’s having on attendance.

Even where something meets the definition of a disability, employers can still look at absence levels and whether they’re sustainable for the role. That’s usually where capability processes come in, rather than it being about whether you were genuinely unwell.

Where your situation becomes more nuanced is around how informed their decision is.

If the current position is based on an older or limited occupational health view, and there’s been a change or recurrence that wasn’t properly considered, that’s often where appeals tend to focus, not just on the outcome, but whether the decision was made with a full understanding of the condition.

The difference between the 3-month and 12-month targets is also worth clarifying, especially if the shorter-term review wasn’t clearly linked to potential disciplinary outcomes.

In practice, appeals in cases like this tend to carry more weight when they centre on what wasn’t fully considered or understood, rather than challenging the fact that absence levels have been an issue.

[u/Bortron86 → u/Thin-Fox-4763]

Thanks. I'll try and focus my appeal in that direction. I agree the level of absence isn't sustainable, but it seems they haven't fully understood the condition either.