Have I been unfairly dismissed?

A question about : Have I been unfairly dismissed?

Hi there,
Sorry for the essay but I really want to articulate my situation best I can:

I am/was a software developer working full time for a company for the last 2 years.

For as long as I can remember I've had problems waking up and I find myself tired the majority of the time, I am also prone to migraines (photosensitivity and stress related), because of this I often would sleep through my alarm clocks and arrive late at work, this type of problem has caused me problems for many years with employers but I've been at a loss as to a solution, I tried everything from better diets to shorter/longer sleep cycles to even trying out polymorphic sleep patterns, all with no success.

For the last year and a half I've been investigating this with my GP and I've been going through the process of getting referred to various specialists to investigate further, I have been diagnosed with Gilbert's Syndrome, and provisionally diagnosed with Parasomnia pending a sleep study, but at present there is no treatment that can help me.

I live alone so waking up is 100% my responsibility, but part of the Parasomnia is I wake up very confused, and often find myself just disabling my alarm and falling back to sleep, then waking up late with little to no memory of disabling my alarms, if I even woke up to them in the first place (I have many alarm clocks).

My employer has been aware of my sleeping issues for at least a year and a half and were aware that I was taking steps to investigate it with my doctor, yet because of my lateness they still insisted on beginning formal disciplinary action, this entailed being put on observation for a month, during which I was prohibited from arriving late, and illness was also frowned upon during this period, I found these demands to be unreasonable given my circumstances but I felt too anxious to disagree with the terms of this disciplinary action.

I have battled with depression for almost a decade now, and for much of the last year I've been given verbal warnings for lateness, this caused me to dip into a deep depression, I lost all motivation and found myself struggling to perform at work, I didn't even bother to eat most of the time, my depression was worsened by work mostly because I felt I would have no job security until myself and my employer had come to some arrangement with my sleeping, I even asked for more flexible working hours, which turned out to not be applicable for some reason.

A few weeks ago my depression reached a peak and I was told by my manager that if going to work is making me ill, that I should not come in the following day, this was told to me after a meeting to discuss my disciplinary action so I assumed it was because he was going to be feeding back to HR about my situation and we could come to an arrangement to better suit my needs.

The next day I stayed off, as I figured that was what was being implied by my manager, I was told not to come in for the majority of the following day too but to arrive for a meeting in the early afternoon with my manager to discuss this situation, during which I explained that the situation with my oversleeping was making my depression worse, which in turn was killing my motivation and making it more difficult to perform my job role at present but expressed that coming to a proper arrangement would help a lot.

At the conclusion of this meeting I was dismissed and told that I had no notice period to work as my inability to fulfill my contractual obligations voided my contract with the company.

I've now found myself depressed, unemployed, and without motivation, have I been treated unfairly in the eyes of the law?

Thanks.

Best answers:

• First off, were you employed for more than two years? Your second paragraph doesn't make this totally clear.
  If not then that pretty much rules out any unfair dismissal claim unless you can show discrimination for a legally protected reason.
  If your illness amounted to a disability (for employment law purposes) and your employer was made aware of this then they would be required to make "reasonable adjustments". However that doesn't go as far as many people imagine.
  If over two years then the dismissal process as you describe it is probably technically unfair. However, these days there is little point in making a claim on purely technical grounds as any compensation is unlikely to exceed the tribunal fees.
  Regardless of that you are entitled to notice or pay in lieu. That would be one week if you were employed for less than two years otherwise two weeks. If your contract specifies more notice then they must pay that. You are also entitled to be paid for all untaken holiday.
• Hi Undervalued, thanks for the reply.
  I was employed for 1 year and 8 months.
  I had no problems doing the work, but due to my fatigue and problems waking up I was unable to attend at 9am everyday, but I was more than capable of performing the role and doing the hours required of me.
  The main issue was that because of my oversleeping I was arriving late, my late arrival caused the company to take disciplinary action despite being informed about my medical circumstances but the disciplinary action proceeded to exacerbate my depression and anxiety, which in turn killed my motivation and worsened my fatigue more, which put me into a negative cycle.
  If an arrangement could've been made to facilitate my problems with arriving at 9am, the other factors would have lessened but because we have a team developers meeting every morning at 9am, starting any later was apparently not applicable.
  So I'm dead in the water I take it?
• If reasonable adjustment was not possible because your attendance at this daily meeting was required then I'm not sure what else the company could have done.
  Had you asked your doctor to treat the depression or were you simply telling the company you were too depressed to perform or even turn up on time ?
• Undervalued,
  I've been technically unemployed since 9th January, I was told by my manager that my inability to fulfill my contractual obligations meant they could void my contract and thus null my entitlement to the 1 months notice.
  I've still not received anything in writing to state my termination, and I'm pretty sure the "nullification" of my contract isn't actually a thing in the case of notice periods... (?)
  As for this lack of notice period, since in a week (+1 day) it will have been a month since my termination, surely the lack of notice period is in breach of the Employment Rights Act 1996? And because of this I'm entitled to take legal action should I want?
  I'm not trying to money grub, but I am trying to exercise my rights, I was rather perturbed to be told I was to have no notice period when I asked about it during the last disciplinary meeting.
  I don't really know what to do anymore
• If it is only a matter of two weeks or so pay, a letter before action would probably elicit payment, but costs wise the small claims court would be a better option than tribunal now.
• It is also worth pointing out that what your manager said to you, and what the employers HR/payroll actually do may be very different things. I suspect that the manager is (erroneously in this case) referring to a frustration of contract, but this doesn't apply here. Can you not check with HR or payroll what you are due? Your final payment may not all necessarily come in the January payment if it is split across different patrol periods, and some may still be outstanding.
• Well I thank you all for taking the time to reply to me, it's been a great help and it actually made me feel a little better about the sitaution too.
• So following all the confusion that occurred around this situation, I've found myself in a bit of a pickle once more..
  I received a pay packet for January, shortly after my termination, it was a normal months pay.
  I was initially misled into believing I was to get no notice period but would be getting paid until the end of January.
  Come the end of January, I finally received my notice letter detailing the situation, and this letter stated that I would be receiving a months pay in lieu of notice, which I thought was a great result.
  According to my contract, notice given by either the employer or employee must be given in writing, to this end, I believed that my notice period would start upon receiving notification in writing (which I expected sooner).
  Come the February pay cycle, I noticed that almost 3/4 of my pay packet had been deducted (as a negative Flex Cash item on the payslip), leaving me with substantially less money than I expected.
  I was lead to believe that according to my contract, I am still an employee of the company till I receive my notice in writing, and should have received by notice pay without such a large deduction.
  Since I was told one thing my my manager and another in my notice letter and yet have been mislead by both, I feel like I'm going in circles...
  Is there anything I can do about this? or am I mistaken about when my notice period actually starts from a legal perspective?
• I can't help with any of the legal/notice queries but I wanted to wish you luck. To be honest I think a lot of people would assume that someone who was late, was either staying up too late or couldn't be bothered and this has probably prejudiced your case before you start
  The good thing is that you are in a relatively flexible industry so hopefully you can find an environment that is more flexible. Personally I can't see the problem, if you are prepared to work late or work evenings/weekends to make up the hours and get the work done. Not everyone is suited to a 9am start.
  Another option may be to go freelance or self-employed. Is this something you could do? Could you design websites or similar. I appreciate designing websites requires design skills and not just coding skills and isn't really the same but it would mean you could potentially work for yourself.
  df