UK Employment Law

UK employment law questions answered by verified Experts

Ask an Expert,
Get an Answer ASAP!

This answer was rated:

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
Show More
Show Less
Ask Your Own UK Employment Law Question
Answered in 3 minutes by:
10/6/2010
Jenny McKenzie
Category: UK Employment Law
Satisfied Customers: 6,475
Experience: 10 Years of experience in Employment Law and HR
Verified
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?
Ask Your Own UK Employment Law Question
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.

Ask Your Own UK Employment Law Question
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: 6,475
Experience: 10 Years of experience in Employment Law and HR
Verified
Jenny McKenzie and 87 other UK Employment Law Specialists are ready to help you
Ask your own question now
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!!
Ask Your Own UK Employment Law Question
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: 6,475
Experience: 10 Years of experience in Employment Law and HR
Verified
Jenny McKenzie and 87 other UK Employment Law Specialists are ready to help you
Ask your own question now
Was this answer helpful?

How JustAnswer works

step-image
Describe your issueThe assistant will guide you
step-image
Chat 1:1 with a solicitorLicensed Experts are available 24/7
step-image
100% satisfaction guaranteeGet all the answers you need
Ask Jenny McKenzie Your Own Question
Jenny McKenzie
Jenny McKenzie
Jenny McKenzie
Category: UK Employment Law
Satisfied Customers: 6,475
6,475 Satisfied Customers
Experience: 10 Years of experience in Employment Law and HR

Jenny McKenzie is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

A quick response, a succinct and helpful answer in simple English. I believe I can now confront the counter party with confidence -- worth the 30 bucks!

RickLeeds, UK

I did not know a French Law service existed and I was very impressed with the speed of reply --- very professional. Many thanks!

Ms. BakerAlfafar, Spain

Thank you so much for your help. Your answers were really useful and came back so quickly. Great!

MaggieUSA

Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help.

Mary C.Freshfield, Liverpool, UK

This expert is wonderful. They truly know what they are talking about, and they actually care about you. They really helped put my nerves at ease. Thank you so much!!!!

AlexLos Angeles, CA

Thank you for all your help. It is nice to know that this service is here for people like myself, who need answers fast and are not sure who to consult.

GPHesperia, CA

I couldn't be more satisfied! This is the site I will always come to when I need a second opinion.

JustinKernersville, NC

< Previous | Next >

Meet the Experts:

Ben Jones

Ben Jones

UK Lawyer

9,074 satisfied customers

Qualified Employment Solicitor

Jenny McKenzie

Jenny McKenzie

6,475 satisfied customers

10 Years of experience in Employment Law and HR

UKSolicitorJA

UKSolicitorJA

Solicitor

390 satisfied customers

solicitor

John Knox

John Knox

Solicitor

72 satisfied customers

Solicitor and Advocate

Kasare

Kasare

Solicitor

35 satisfied customers

LLB (Hons)

Buachaill

Buachaill

Barrister

24 satisfied customers

17 years experience

INC

INC

Solicitor-Advocate

22 satisfied customers

LL.B, Pg.Dip, LL.M, M.B.A (Pending), Solicitor-Advocate. UK Practising Certificate issued by SRA., DIFC Courts Registered (Dubai)

< Previous | Next >

Related UK Employment Law Questions
I'm waiting for a formal capability procedure which I
I'm waiting for a formal capability procedure which I believe is unfair. What are my options?… read more
Ben Jones
Ben Jones
UK Lawyer
Legal Practice Course
9,074 satisfied customers
I am working years 4 months in an IT department of online
Hi, I am working for 2 years 4 months in an IT department of online discount shop. My Head of Department (HoD) started an informal capability process at start of June. I was told that he will send me … read more
Ben Jones
Ben Jones
UK Lawyer
Legal Practice Course
9,074 satisfied customers
Ben. I was an outstanding and star employee.However, have
Hi Ben. I was an outstanding and star employee.However, have suffered from harassment and victimism at work for the past year as the new manager did not support my job. The unfair treatment and assaul… read more
Ben Jones
Ben Jones
UK Lawyer
Legal Practice Course
9,074 satisfied customers
I am a head of faculty in a large secondary school, and I have
I am a head of faculty in a large secondary school, and I have two other people in the department with responsibility to lead their subjects, whilst I have oversight. However one of them has what I ca… read more
Ben Jones
Ben Jones
UK Lawyer
Legal Practice Course
9,074 satisfied customers
Hello. I hope you can help me. I work for a large supermarket
Hello. I hope you can help me. I work for a large supermarket chain and have done so for nearly 13 years now. I am battling depression which I have had on and off. I relapsed more than 8 years ago and… read more
Ben Jones
Ben Jones
UK Lawyer
Legal Practice Course
9,074 satisfied customers
Hi, My wife is an Oxford graduate in Modern Languages.
Hi, My wife is an Oxford graduate in Modern Languages. She has been teaching French and Spanish in schools for over 20 years and has been at her current school for 18 years. She is 51 years old and at… read more
Jenny McKenzie
Jenny McKenzie
Vocational, Technical or Trade Scho
6,475 satisfied customers
I work as a Deputy manager for a private health care
hello, I work as a Deputy manager for a private health care company. I have been off work due to a work related back injury since the 5th October. I have been signed off work cause i have been diagnos… read more
Ben Jones
Ben Jones
UK Lawyer
Legal Practice Course
9,074 satisfied customers
I am currenly in a cleaning managers role. We won a globle
I am currenly in a cleaning managers role. We won a globle contract in June to go live in September of this year. I was asked by my line manager if I would help him transition the cleaning on our new … read more
Ben Jones
Ben Jones
UK Lawyer
Legal Practice Course
9,074 satisfied customers
I have been off sick since October 2011 due to stress brought
I have been off sick since October 2011 due to stress brought on by work where I was taken into the managers office, and had meetings with him and my supervisor to say that my work was not up to scrat… read more
Ben Jones
Ben Jones
UK Lawyer
Legal Practice Course
9,074 satisfied customers
I have worked for my current employer for almost 3 years. General
I have worked for my current employer for almost 3 years. General Manager in office. On the 11th of April I was called into a meeting with my boss and a manager from our head office in Dartford. I had… read more
Ben Jones
Ben Jones
UK Lawyer
Legal Practice Course
9,074 satisfied customers
Basically in early february I had a meeting with my manager
Basically in early february I had a meeting with my manager to discuss my sickness record as I have had 19 absences in the past year, mainly due to recurring respiratory illness. At this meeting my ma… read more
Ben Jones
Ben Jones
UK Lawyer
Legal Practice Course
9,074 satisfied customers
Hi, My partner is being bullied at work by his managers.
Hi, My partner is being bullied at work by his managers. He is attending a meeting today where he may be advising that he will be raising a grievance. The bullying does not come under the equality act… read more
Ben Jones
Ben Jones
UK Lawyer
Legal Practice Course
9,074 satisfied customers
One of our employees has a final written warning about absenteeism,
One of our employees has a final written warning about absenteeism, sickness and lateness which was issues on 13/02/2012 and runs for a year. He has just taken 2 days off sick this week for an ongoing… read more
Ben Jones
Ben Jones
UK Lawyer
Legal Practice Course
9,074 satisfied customers
My company has a female employee aged circa 60 years whose
My company has a female employee aged circa 60 years whose ability to fulfil her job has steadily deteriorated for the past three years to the point where she is now making serious errors which are da… read more
Ben Jones
Ben Jones
UK Lawyer
Legal Practice Course
9,074 satisfied customers
Hi We have a sales rep who soesnt seem to be pulling his
Hi We have a sales rep who soesn't seem to be pulling his weight. He seems to be happy with his salary and brings in small sales. Is it perfectly reasonable for us to now set sales targets for him to … read more
Ben Jones
Ben Jones
UK Lawyer
Legal Practice Course
9,074 satisfied customers
I reported feeling stressed to my manager in Oct 09, she failed
I reported feeling stressed to my manager in Oct 09, she failed to conduct a return to work interview or refer me to our occupational health due (I have evidence of the return to work form not filled … read more
Jenny McKenzie
Jenny McKenzie
Vocational, Technical or Trade Scho
6,475 satisfied customers
i was diagnosed with gilberts syndrome (a stress induced illness
i was diagnosed with gilberts syndrome (a stress induced illness with genetic links) two months ago i have lost 2 stone in weight in last 6 months and have no confidence in my job just the idea of bei… read more
Ben Jones
Ben Jones
UK Lawyer
Legal Practice Course
9,074 satisfied customers
Please advise how I am to deal with my situation. In may
Please advise how I am to deal with my situation. In may this year I was diagnosed with work related stress and depression. Once I told my employers they immedietely threatened me with de-promotion fr… read more
Jenny McKenzie
Jenny McKenzie
Vocational, Technical or Trade Scho
6,475 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x