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advice and others experiences of being invited to a formal capability hearing in relationto sickness

SDSBriz

I'm new to.here. im looking for advice and others experiences of being invited to a formal capability hearing in relationto sickness not because of performance. I've been employed for 13 months. Had several Sickness absences and most of my sickness is related to my disabilities. I had an Occupational health appointment after being off for 8 weeks oct to dec 2024. The report was sent to my employer in February 2025. I didn't have any meetings with them about it and was off sick in March but was told I didn't hit a trigger. I then had 2 days of sickness in June and following that I was invited to this formal capability meeting. It's set out in the letter its to discuss my occupational health report and whether I can with reasonable adjustments provided at regular and efficient service. I may be dismissed if the decision maker doesn't think adjustments are reasonable or will enable me to provide a regular and efficient service. I'm not in a union but I've had some legal advice and they think if im dismissed after this meeting it could be discrimination arising from disability as my sickness absence is related to disability but it could be that the reason to dismiss me is justified as cannot be removed by any reasonable adjustments. It feels very ambiguous. I know they have to follow fair process.

I know if 2 employees who have either left or been dismissed since I've been employed one was for health reasons and the other was i think sacked. This has obviously worried me.

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Comments

Holly_Alumni

Hi @SDSBriz really sorry to read about your situation. It's good that you've sought some legal advice, as to be honest that's what I'd have suggested. I was curious, have you received a copy of the occupational health report yet? I have had one previously and this was sent directly to me. I'm concerned about the time it's taken for them to action this if it had been completed in February, that's now 4-5 months ago. It's important you have sight of what they've proposed as reasonable adjustments too, and not just your employer.

Someone had suggested previously on a similar discussion, it might be worth having a trusted person present at your meetings and to minute and share these with all parties in writing afterwards so I thought I'd pass that on.

SDSBriz

Hi Holly

Yes I received a copy of the occupational health report in February and was told verbally her recommendations. Some of it is reasonable adjustments and some of it was recommendations for future treatment options which I have started the ball rolling for.

YYes I feel that it was brushed under the carpet for a while as wasn't really addressed in a timely manner and only seems to be being addressed now I've had more time off work sick. This doesn't seem to be handled well and i suspect they don't have experience of disabled employees. Their policies around sickness are worded as general for all employees and no mention of disability. There has been no informal discussion except during return to work sickness meetings. Just this letter.

I don't wish hk have a colleague from work at this meeting as it's sensitive and im not open at work about all my disabilities as I don't feel comfortable. And the only other option is trade rep which unfortunately I am not in a union. I've looked at paying for a union representation on this issue but the costs are too much for affordability unfortunately.

Holly_Alumni

Bless you, thanks for elaborating. Did they put the reasonable adjustments in to place for you? I hope so.

I'm sure, and the worry and stress isn't going to help you feel any better in yourself either. Yes, policies, can be very broad and I think sometimes intentionally.

I'm so sorry you've not anybody at work who you feel close enough to take with you. Is your meeting soon?

Bydand

https://forum.scope.org.uk/discussion/136914/advice-and-others-experiences-of-being-invited-to-a-formal-capability-hearing-in-relationto-sickness

Hi, not an expert by any means but have had dealings with OH, HR and employer so have a general understanding of how things should progress.

Not sure if you have already had this meeting since you posted.

The first obvious thing seems to be that the OH report wasnt actioned at the time and you appear not to have been invited by management or HR to discuss the findings of the report.

I would think that you would be within your rights to ask for a new OH referral to be made since you have made mention of the fact that you have had several more sick periods and your circumstances may have changed or worsened. It is generally agreed that most OH reports should last between 3 and 6 months before a new one needs to be generated for cases that are ongoing.

It is important in your case that both you and your employer, along with OH and HR have the most up to date advice based on your current situation. This allows a proper discussion to be had and ultimately the correct decisions to be made.

The abscence management policies of most employers will be very similar in scope and the information provided. It will very rarely include specifics about employees with disabilities because as an employee you are subject to the same rules and policies as any employee joining a company otherwise that in itself could be construed as discrimination against able bodied employees….so the basics all need to be the same but any subsequent reasonable adjustments need to be individualised if highlighted.

Did you disclose your disability when you applied for the job?

Have you had any yearly, 1/2 yearly appraisals. If so has anything been recorded with relation to your sick periods.

What the abscence management policy should set out is the very specific trigger points that an employee might breach with extended periods of sick. It should also include what the consequences could be at each stage. That way every employee knows what is likely to happen in the event of numerous periods of sick. It should come as no surprise to any employee with several periods of sick what the consequences could be to them, whether able bodied or disabled.

With regards to reasonable adjustments, an employer must take all reasonable steps to facilitate reasonable adjustments as set out in an OH report, but they can also refuse these but must give written notification in full as to their reasons why.

I understand your discomfort about not wanting to take anyone into the meeting with you, but I would urge you to reconsider this. Often a fair bit is discussed and it can be a very lonely one sided affair if it’s just you on your own in an already pressurised environment. As is often the case you end up leaving such meetings not being able to remember everything that was said.

At the end of the day, an employer can dismiss you on capability grounds having tried all reasonable adjustments first. These adjustments need to be recorded in line with standard practices and should be robust. But reasonable adjustments can’t be inexhaustible, there has to come a time when an employer can offer no more to the employee. Both employee and employer have rights.

You need to be very proactive in your dealings with your employer. Keep all emails or correspondence you might have and from now on correspond by email or if this is not possible, by all means communicate verbally but follow this up by an email detailing what was said, times, dates and any outcome.

Realise a stressful time but the meeting will happen whether you want it to or not, you need to fully prepare for it. Get a copy of your abscence management policy and read through thoroughly. It is likely that during the meeting they may make reference to this policy so being confident about your knowledge is a big benefit as you will know what the policy states.