Another job bites the dust!!!

[soraya]

My poor son has failed yet another probation period for a job, this is the 6th time it has happened. This time it was at McDonlads, Nick has been there two weeks and was loving every minuite, a totaly changed person, happy and with a purpose in life. Yesterday he went in only to come back after an hour with a form to say he had failed to make the grade. It said he was a good worker,and great with the customers and polite, but he was too intense with other members of staff, offering them lifts home and going through the drive through on his days off, thus making them feel uncomfortable. I now have a very unhappy angry young man to deal with!!

The trouble is because Nick doesnt have any friends he tries too hard with people at work and its freaks the girls out!!

Nick will not disclose his aspergers as he thinks he will not get the job if he puts it on the application form, i think he should as it may help explain his behaviour.

Are there any agencies out there that help to get jobs and act as a sort of mentor when things go wrong? I have looked into supported employment but that would be too intense support.

[bed32]

I am sure it is difficult, but I think he should tell both HR and his line manager. Whether that is at application time or whether to wait until he has the job, is a different matter.

 

Had the company known he would have had a very strong case for discrimination, it is much harder if he didn't tell the company - but I think he does still have a case (particularly since the reason for dismissal does not relate directly to his ability to do his job - so he has not been asking the employer to make any adjustments).

 

If it matters that much you could call them/write to them explaining that he has AS and asking them to reconsider, if you state that you believe he has been dismissed because of his disability you can be sure to be taken seriously.

[robert7111a]

It said he was a good worker,and great with the customers and polite, but he was too intense with other members of staff, offering them lifts home and going through the drive through on his days off, thus making them feel uncomfortable.

 

Hi Soraya

 

Sorry to hear about your son

 

Being only a probationary period, this is difficult and I suspect strongly that there are no grounds for unfair dismissal.

 

Either there is another reason that McDonald's are not disclosing or one of the staff made a formal complaint regarding harassment or something to that effect

 

Perhaps you could talk to him about it, fish for clues etc and hope he is forthcoming

[bed32]

Being only a probationary period, this is difficult and I suspect strongly that there are no grounds for unfair dismissal.

There is no minimum qualifying period for a claim of unfair dismissal on the grounds of disability.

 

If he has been dismissed because the other employees don't like working with him for a reason that is directly related to his disability that is jsut the same as being dismissed because they don't want to work with a woman, or a black person. It is totally unacceptable and ought to be contested.

 

The case is weakened because he didn't say up front that he is AS - but you don't need to say you are disabled to be protected by the discrimination legislation. If he writes and appeals the dismissal on the grounds that it is related to his disability then the company would have to act - or face a pretty much unwinnable case in front of the tribunal.

[soraya]

Have just spoken to the manager and she said she was within her rights to dismiss Nick as he was on probation, she also said she was worried that he might say something to upset the customers, and she has to think of the other staff who were uncomfortable around him!! I feel like ringing the head office but I don't know if it will help. Just so very sad for Nick as he does try

[bed32]

Did you mention that he had AS?

 

I would recommend taking notes of any telephone conversations you have. As mentioned above "Probation" periods have no relevance to claims for dismissal for Disability (or Sex, Age, Whistleblowing and so on).

 

If you want to follow this up then you will need to get something in writing. Probably best to right formally saying the you wish to appeal the dismissal and that you believe that he was dismissed because of his disability. If you put that in writing then the will have to respond and address the allegation.

[Sally44]

I think you need to know more specifically what your son's rights are and what employment and disability law says on these subjects. Believe me, most people you talk to have no idea, and so what this manager from McDonalds said may not be true - as far as the law stands.

 

You could start by asking the NAS, as they should have some information on this subject.

 

Our Local Authority also has a department that deals with Disability Discrimination. If they cannot help you directly, they should be able to put you in contact with someone or an organisation that can give you the information you need.

 

Another organisation I have found very helpful is the National Centre for Independent Living. They have a telephone and email service, and so they should be able to advise you on work issues too relating to disability discrimination.

 

I would try to find out what could/should be done before you broach the subject with your son of telling potential employers.

 

I presume he is on ESA? And the Jobcentre also needs to know of his diagnosis and how this may affect him in certain types of jobs, and what adjustments or support he may need. It maybe that a 'front line' customer service type job is not the best type for him. But that is their job to try to sort out what is suitable so that he does not get this time and time again.

 

In the meantime - whilst inbetween jobs - maybe he could do some voluntary type work where he is less likely to be turned away, and where he might get some more positive feedback and work related experience.

[A-S warrior]

its an easy way to save money. places like this will put pepole on "probation" and then send them on there way over and over again. its free labor. a guy i used to work with would hire someone on the weekend, they will do there weekend shift and then he would tell them there not suitable. he did it every weekend, and because they were on probation he diddnt pay them.

[robert7111a]

its an easy way to save money. places like this will put pepole on "probation" and then send them on there way over and over again. its free labor.

 

Yes this is sadly becoming the way of the world as employers' budgets are squeezed.

 

Sorry to sound blunt but I think you will find it difficult to sue for unfair dismissal. Firstly, your son must have been in continuous employment for 1 year (i.e by McDonalds) with no break in service. Secondly he must have a written contract of employment. Read up on employment law and you will find that these 2 statements must be satisfied.

 

Putting people on probation means that companies do not have to draw up contracts which is how they get through the loopholes

 

I wish you all the very best of luck!

[robert7111a]

Oh I forgot to add, if your son did not mention he has AS then I doubt very much you can bring about a claim for unfair dismissal under the disability act because the company will say that your son witheld this information - this in itself is enough to bring about dismissal

[bed32]

Oh I forgot to add, if your son did not mention he has AS then I doubt very much you can bring about a claim for unfair dismissal under the disability act because the company will say that your son witheld this information - this in itself is enough to bring about dismissal

That is simply wrong in several ways.

 

There is no obligation to disclose a disability in order to qualify for protection under the various acts. Also failure to disclose a disability could never be a fair grounds for dismissal (the exception being of course where it materially impacts some one's ability to do a job - such as a blind person driving an HGV).

 

If he can show that his dismissal was as a result of his disability he would win a tribunal claim. The problem of course is evidence - so he needs something written down.

[robert7111a]

OK but remember he was only employed for ...2 weeks...

[bed32]

OK but remember he was only employed for ...2 weeks...

Doesn't matter - the discrimination law covers all aspects of the process. You can even claim if you are refused a job based on your disability - the problem of course is proving it.

 

That is one reason you are very unlikely to find any part of the job application process explicitly asking if you are disabled (as opposed possibly to asking if you need adaptations because you are disabled) you not disclosing a disability is highly unlikely to involve any form of concealment/dishonesty in the application process.

[robert7111a]

Bed32

 

The laws etc are heavily weighted in favour of the employer. As you say, the onus is on the employee to prove that he was dismissed on disability grounds. This is going to be difficult because:

 

1) Your son did not disclose his AS at the time of interview or any time during his employment. His employer will use this in their defence

 

2) He was on probation and therefore had no formal contract. This means his employer can fire him at any time for any reason

 

3) One of the employees may have made a formal complaint against him regarding harrassment/sexual harrassment because he has been "too intense" as the OP puts it

 

4) Your son may not have followed correct procedures or his timekeeping was brought into question

 

5) Your son may have done something else that he isn't telling you

 

You do have every right to write to his employer to demand reasons for dismissal but this does not mean that they will write back with a truthful answer.

 

I see this every day in my profession where people pull the race card because they feel they have been treated unfairly but really, they have breached something or other where they know reprimand or dismissal is likely

 

Is it really worth the aggro and expense of suing for the sake of 2 weeks employment?

 

Sorry to be brash but just trying to be realistic... I have every sympathy for you but the world of employment today is very harsh and unforgiving

[bed32]

Bed32

 

The laws etc are heavily weighted in favour of the employer. As you say, the onus is on the employee to prove that he was dismissed on disability grounds. This is going to be difficult because:

Actually that is not correct - acknowledging the difficulty the law actually reverses the burden of proof for discrimination claims, it is for the employer to prove a potentially fair reason (although this gets a bit more complex when there is less than the qualifying period). If the employer doesn't give a reasonable reason for dismissal the law will assume that the reason is the disability.

 

As I've said above, most of the examples you give are completely wrong.

 

1) There is no obligation to disclose disability - so that is nonsense

2) If he is working there is an implied contract - and no contract is required anyway to claim discrimination(e.g. you can claim it if they fail to hire you because of a disability)

3) Any such allegation would need to be investigated - if such a complaint existed it could in itself be an offence under the new Equality act

 

In general I agree that it is not worth pursuing each and every employment dispute but in this case it could be worth considering - this is not a one off but "yet another" - there aren't that many jobs out there that you can just move on to another.

[robert7111a]

I'm sorry, with respect, you are wrong

 

There are many reasons why a person may be employed on probation and one of them is to see "if they fit in". Unfortunately your son does not have a leg to stand on in this case.

 

Clearly his employer has decided that your son "does not fit in" for whatever reason (or the other reasons described) and they have every right to let him go - cruel as it is.

 

Unfortunately you cannot pull the disability/race/or whatever/ card to pull him out of this.

[A-S warrior]

at the end of the day, is it any great loss? its mcdonalds, not a buisness deal with donald trump. he will move on to bigger and better things eventully, and the guy who fired him will be condemned to flipping burgers and sevrving shakes till he,s 65. and hireing 2 bit nothings who pop there spots in the mustard. and do other things in the mayo. all that joy for £6 an hour. your sons better off.

[indiscreet]

Soraya, did your son fail the probationery period in the previous five jobs for the same reason? If so, then he needs help to deal with his problem. To many people the way he tries to be friendly could seem intimidating and odd but if he can relate well to customers he can learn how to do the same with fellow workers.

 

I can sympathise with him because even now I don't always get social inter-relationships right but I've learned it's better to initially seem standoff-ish then too pushy and "in people's faces".

[matzoball]

Robert7111a - I am a bit troubled at you saying people 'pull the race card' at your job. As for the other stuff, you're not entirely wrong however you are not entirely right. The Equalities Act 2010 in regards to employment says you do not have to disclose your disability. ACAS also say you can appeal against what you feel as unfair dismissal regardless of being on a probationary period and regardless of how long that probationary period was for. He should have perhaps disclosed his AS once he was in the job, however that was his choice.

[robert7111a]

Robert7111a - I am a bit troubled at you saying people 'pull the race card' at your job.

 

Matzoball

 

I'm sorry you feel this way but I work in a large organisation with an excellent HR and have interviewed many people in my time. Unfortunately a few individuals (one even in my department) decided to go to tribunal because of some grievance and lost.

 

I'm sorry if this comment has offended you but I'm afraid "pulling the race card" really does happen in the real world.

[robert7111a]

Actually that is not correct - acknowledging the difficulty the law actually reverses the burden of proof for discrimination claims, it is for the employer to prove a potentially fair reason (although this gets a bit more complex when there is less than the qualifying period). If the employer doesn't give a reasonable reason for dismissal the law will assume that the reason is the disability.

 

If this is the case, then all the employer has to say is that the employee was not the right person for the job/did not fit in the ethos of the company/another employee made a complaint against him...the list goes on. The employer will always find "a reasonable reason" for dismissal. No employer these days would really be stupid enough to fire somebody on account of disability so they will always find another reason

 

Now had Saraya's son been working for McDonalds for longer and had a written contract of employment, then everything changes and she has a better chance of bringing a case. But given this hypothetical situation, the issue could still prove difficult if her son failed to disclose something (i.e. his condition) as the employer could argue that he lied on the application form and obtained the job under false pretences.

[matzoball]

Robert7111a - I do employment advocacy for people with disabilities in my spare time so as such know where people stand in regards to employment law. I live in the real world and would appreciate if you wouldn't keep insinuating I don't if that is okay? I say this with respect and not with view to starting any kind of argument.

 

As the OPs son has a disability, he is protected by the Equalities Act 2010. He does not have to disclose anything at interview, or on his application form. It's illegal to actually ask someone if they have a disability on an application form. So he didn't lie, he chose not to disclose it as he was scared he would either not get the job, or be treated differently if he got it.

 

Personally I am all for disclosing, as it gives the prospective employer a chance to see if they are actually able to accomodate me. But that's not what is being discussed.

 

McDonalds issue contracts as standard, with a clause in built that there is a two week minimum probationary period with view to extending. Saraya's son will have been made to sign this as part of his induction. If he didn't - then McDonalds hired him illegally. So she will have a chance of at least seeing if a case is viable.

 

He lost his job due to unacceptable behaviour, however he did not know it was unacceptable as his disability limits his comprehension of social conventions. If Saraya wants to persue this avenue, she has every right to.

[robert7111a]

matzoball

 

I had problems posting my response so will try again.

 

I'm sorry if you are offended by my posts but in no way am I insinuating that you don't live in the real world. I'm sorry if you feel that way.

 

I have been in employment for 30 years with many large organisations and I know the real world too. The world of employment has gone from bad to worse in the last few years with more red tape and legislation and I have only commented from what I see with my own eyes.

 

I do all this for a living and have seen many unfortunate things happen to employees over my time. I understand this is a really sensitive debate and don't want to turn this into a personal argument. I'll respect your opinion if you respect mine.

 

I hope Soraya, your son can get over this and settles down in a happy job.

 

The world of work is very cruel these days.