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Our son who, works for a local authority, was put on to informal…

Our son who, works for...
Our son who, works for a local authority, was put on to informal capability procedure in March following a bout of depression in which his work suffered. His supportive manager left just as the procedure started and the procedure has since been run by an acting manager whose behaviour suggests that she was setting him up to fail. He was devastated when she extended the informal procedure on the grounds that his improvement had not been significant, although by then he was only making minor mistakes and was successfully tackling all the tasks he could not face when depressed. She isolated him from the support of his colleagues by telling him he was not to discuss the matter with them and forbidding them from asking him why he was distressed, although there is nothing in the procedure to say it must be kept secret. She told him on extending the procedure that he would be in capability for a long time and that it would eventually become formal. This is not the 'fair, positive and supportive manner' in which the procedure is supposed to be conducted. How could she know at the start of the extension that the procedure would eventually become formal unless she had already decided to fail him irrespective of how well he performed? Three weeks ago he was given (barely) five days notice of the first formal meeting, but not the required details of the concerns she would be raising at that meeting. When he asked for them she said he would find out what they were at the meeting. At the meeting he pointed out all the ways in which she had failed to follow the procedure, but she swept them aside with words to the effect that the legal department had cleared everything. The HR department appears to give support only to managers - when he asked them for advice they simply referred him back to the woman running the procedure. Although he has just got a new line manager the acting manager is continuing to conduct the formal procedure because she has expertise in his field of work and the new manager doesn't. All this has greatly worsened his health (he has continued working throughout and has taken sick leave only for doctor's and occupational health appointments). He now has the right to appeal against the procdure going formal, but wants to 'keep his powder dry' for the time in which they may try to unfairly dismiss him. He would rather serve out the 3 months formal and come out with no mistakes against him. We feel that this is dangerous, that given the track record of this acting manager she will find some cause for complaint somehow. (The whole process has been dangerous - to do this to someone with depression is horrendous, they are lucky not to have a suicide on their conscience.) Would you recommend him to appeal now, or is he right to think it would be better to leave it until he is in worse trouble? The problem is, of course, that everything she has said to him has been in private and it will always be her word against his.

Any advice you can give will be gratefully received.

Donald and Janet Foxley
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Answered in 3 minutes by:
10/6/2010
Jenny McKenzie
Category: UK Employment Law
Satisfied Customers: 6,467
Experience: 10 Years of experience in Employment Law and HR
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How long has he worked there in total and has he suffered from depression over a long period of time? When he does suffer does it have a significant impact on his ability to carry out day to day activities?
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Customer reply replied 7 years ago
He has worked there for three years. He declared that he was dyslexic when he applied and also that he was on anti-depressants. He had a bad episode of depression at 17 (15 years ago) and has been on tablets ever since, but this is the first major episode since then and it affected his work for a few months. Although he did not take time off work, his self-confidence slumped so that he could not face the part of his job that involved visiting or telephoning people he has to deal with regularly but occasionally. He received counselling, was recovering well and had returned to all his duties even before the first stage of informal capability began. Now his acting manager is picking on one-off occasional mistakes - often due to the poor organisational skills associated with his dyslexia. He was put into formal on the basis of two one-off mistakes, neither of them causing any damage, one involved forgetting to carry out a test procedure which is rarely needed, and the other underestimating the length of time a task he was unfamilar with would take him. Most of his work is good, sometimes excellent. We had rather assumed that lack of capability meant general and continuing substandard work, rather than one-off mistakes which he learns from and is most unlikely to repeat.

He has an argument that the actions of the local authority amount to Disability Discrimination.

 

Conditions such as Depression and Dyslexia can amount to a disability for employment law purposes and employers must make reasonable adjustments to assist disabled employees in the workplace. This might include relaxing capability rules.

 

If they are being heavy handed in the way in which they are applying the capability rules BECAUSE of your son's depression then this might amount to direct discrimination.

 

He should raise a formal grievance to HR to state that he believes that the acitons of the acting manager which are being continued by the new manager amount to disability discrimination and he wants some reassurrance that he will not be discriminated against in the future. He should also ask what reasonable adjustments the authority will make to assist him at work. This might include mentoring, reducing hours, extra training, access to councelling services.

 

They cannot treat him badly for raising the grievance.

 

I really hope that matters improve for your son and I do think he should do something about it as it is not a tolerable way for an employer to treat an employee.

 

I would be grateful if you would press ACCEPT If you have found my answer useful. I will then leave the question open to answer your follow on questions for free.

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Customer reply replied 7 years ago
We know (by chance) that his manager took legal advice before starting the procedure. His employers also provided him with 6 free sessions of counselling for the depression (he had many more at his own expense), he has special software to help with the dyslexia and is currently having job coaching. We don't therefore think there is a case for disability discrimination, they look on paper to have been doing everything right. The only problem is with the behaviour and attitude of the acting manager herself. Her approach has been unfair, negative and unsupporting, she seems to have decided from the outset that he was going to fail and no-one in HR seems prepared to take her to task for failing to follow the rules set out in their own Capability Procedure, which includes providing fair, positive and supportive management. The one-to-one nature of the informal stage of the procedure has effectively given her licence to bully him, which she has done by repeatedly telling him that he will be in the procedure for a long time, belittling his achievements and nit-picking about his mistakes, eg returning his reports covered in corrections, many of them petty.

My advice remains the same that the treatment of the individual manager can amount to disability discrimination if the 'reason for the treatment' is the disability.

 

I do still think he needs to raise a grievance, whilst on paper they may have done everything it is often the case that in reality the treatment is quite different and your son needs to use this opportunity to put forward his version of events to protect himself.

 

Please press ACCEPT If i have answered your original question. I will then leave the question open to answer your follow on questions.

Jenny McKenzie
Category: UK Employment Law
Satisfied Customers: 6,467
Experience: 10 Years of experience in Employment Law and HR
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Customer reply replied 7 years ago

I still do not think this would stand up as disability discrimination. His acting boss is treating him like this not because he is disabled but because the Capability Procedure gives her power over him. Can he not appeal on the grounds that she is not following the procedure correctly?

Yes. You can certainly do that, but does she really treat all staff that way? or is he being treated differently because of his condition. If it were not for his condition he would not be in this position, you should bear that in mind - and so should she!!
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Customer reply replied 7 years ago

She doesn't have the same degree of control over anyone else, so it's impossible to compare. I'm witing now for feed back from my son to see if I need to ask anything else.

This is why i believe it might be discriminatory. He can argue that a 'reasonable adjustment' might be amending the policy/way in which he is treated to assist with his condition.

To be honest having advised local authorities on employment law it is a welcome relief to see an employee argue something does not amount to discrimination as it is normally the other way round.

 

I am not saying it is discrimination just that his manager's treatment of him (with his particular issues) can be considered to be heavy handed. If it is affecting his condition then he should complain and ask for 'reasonable adjustments to be made).

 

 

 

Jenny McKenzie
Category: UK Employment Law
Satisfied Customers: 6,467
Experience: 10 Years of experience in Employment Law and HR
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