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My partner recently hurt his back, and could barely move, so the doctor signed him off for two weeks. Its a very physical job that he just coundnt do with a bad back. He rang up his work and told them, and then took the sick note in. The day after his sick note ran out, he still didnt go in, but didnt ring them either. Yes it was stupid. Yes, he is stupid. This was a friday. On the saturday he recieved a letter from his employer saying that he had previously been issued with a verbal, and a written warning about his time off, and so his employement was being terminated.
But as far as my partner is aware, he has only ever recieved a verbal warning. If he had recieved a written waning, would he have had to sign it? Would he have had to sign something saying that he had ecieved a verbal warning too? Because my partner tells me they gave him his verbal warning while he was standing in a queue in the canteen!
Is this practice right? Can we do anything about it?
He has had lots of accidents there too, and been in hospital numerous times beause of them, but thats another story!
Stupid as it sounds, even a verbal warning has to be written down!
For a verbal warning to have taken place, an official meeting would have to be arranged, with the oportunity for the employee to have union representation present or a work colleague witness. Although the warning is stated to be "verbal", the details of the meeting taking place and what was said by whom should be recorded (eg why the company feel the warning is valid and what the employee said in his defence). This is then given to the employee in letter format and a copy placed on file.
I would suggest from your account no valid "official" warnings have ever been legally issued.
How long had your partner worked there when he was dismissed?
Che
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I am sorry that work means I don't get into the Employment Forum as often as I would like these days, but nonetheless I'll try to pop in when I can.
He can first raise a grievance, appealing the decision to dismiss, stating that he has not received any warnings. Do not allow him to state that he accepts they have unofficially warned him - simply state that he has disputes having received any official warnings regarding absences, and therefore they have not followed procedure, if they disagree, please provide written evidence of these alledged warnings, and give them 28 calender days to respond.
If they fail to respond within 28 days or if they do respond but can't provide satisfactory evidence (as an example, stating "You were given a verbal warning on XXX date, by XXX manager" - is not sufficient evidence. It is simply their version of events, not substantial proof. Providing a written document which states that he accepts the verbal/written warning, with his signature on it in agreement is evidence), he can take it to an Employment Tribunal: Employment Tribunal
He MUST raise a grievance - what is the procedure according to his contract of employment?? Follow that. Once that is complete, then he can proceed (within three months) to issue a claim in the ET.
However, they can terminate his employment if he is ill (because he is unable to complete his contract) - however if he falls under the DDA then a duty of reasonable adjustments comes into play. A bad back MAY fall under the DDA.
Normally warnings only last for a specified period of time also and should be removed from the personal file after expiry of this time.
I've known solicitors do a SAR to obtain all info on personal files which might help your case if there is no documentation regarding the previous disciplinaries. This would cost you £10 though.
Also, they can't just dismiss without a formal hearing...surely that in itself is wrong.
You say that his employment was terminated rather than him being dismissed. Was he employed on an agency/contract basis?
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Hi, thanks for your replies. No it wasnt a contract/agency employment basis.
He still says he doesnt remember ever signing anything to say he'd been given a warning. Should there have been a witness there if he had?
I'm going to write a letter up today to send to them, and he is going to dig out his employment contract.
Should I scan the letter off them and post it up, blanking out any personal bits? Would it help?
Hi, thanks for your replies. No it wasnt a contract/agency employment basis.
He still says he doesnt remember ever signing anything to say he'd been given a warning. Should there have been a witness there if he had?
I'm going to write a letter up today to send to them, and he is going to dig out his employment contract.
Should I scan the letter off them and post it up, blanking out any personal bits? Would it help?
As has been said above, all warnings have to be in writing and a disciplinary hearing should have been held with your partner being invited to attend with a colleague or trade union rep.
If there is no paperwork to this effect then I would be inclined to SAR his employer without giving the game away too much.
You will also need to appeal the decision and the letter should have enclosed details on how to do this and the relevant timescales.
If your partner is not in a trade union then I would make an appointment with CAB as you seem to have a very strong case.
Yes, by all means post up the letter (excluding personal info) as someone with an HR background may be able to help.
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Just to add - havng just injured his back will definately not cover him under the DDA. As it has recently occured, it cannot yet be defined as a "substantial and long-term adverse effect on his ability to carry out normal day-to-day activities." To put a finer point on it, if he is not registered as disabled it is unlikely he would be covered by the DDA.
However, regardless of whether he is covered by the DDA, his employers still have a duty to accomodate an injury or medical condition via reasonable adjustments, if appropriate.
Erika, whilst I applaud your enthusiam, I am afraid that IF the condition is expected to last in excess of one year, as well as the usual caveat of adversely affecting normal day to day activities (though if those activities can be undertaken but pain results, this still counts as an adverse effect) then it can be a disability.
To put a very fine point on it, I've known a few people who have neither had their ill health in excess of one year nor are registered disabled who have been found by an ET to be covered by the DDA. It falls to the requisite medical evidence, and as I said, IF the condition is expected to last for a year.
The Disability Discrimination Act (DDA) defines a disabled person as someone who has a physical or mental impairment that has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.
The registration scheme under s29 National Assistance Act 1948 was effectively made redundant by the DDA as regards classification of disabled persons. The former is normally only used by local authorities when assessing social care needs as I understand it.
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Hi guys, thanks again.
Iv typed out a part of my partners Contract of Employment about terminating employment, and below that is the letter they sent to him.
TERMINATING EMPLOYMENT:
Employment may be terminated by either yourself or the company by giving one week's notice for each year of sevice, up to a maximum of twelve weeks notice. further details can be found in the Personnal Handbook. (which we dont have)
The company may terminate your employment without notice if you are guilty of gross misconduct, gross negligence, of gross incompetance, or have committed a serious breach of your obligations under this agreement, or have carried out any action such as to give the company resonable cause for losing trust with you.
Ok, the letter:
Sent on 9th April.
Dear ******
After phoning the office yesterday and informing us that you would be back at work today, you have once again failed to report to work, and failed to contact the office with an explanation.
You were warned at a disciplinary interview on 3 february 2009, and in writing that any further occurrences of this conduct could result in dismissal. My partner says none of this ever happened.
We cannot allow this conduct to continue and have therefore terminated your employment with the Company, and your last day of employment being 7 april, the last day of your Sick Note.
You have the right to appeal against this decision. Should you wish to appeal you must write to ***** *****, staing clearly the grounds for your appeal, within 5 wokring days of recieving this dismissal notice. Isnt 5 days a little harsh?
The Code is issued under section 199 of the Trade Union and Labour
Relations (Consolidation) Act 1992 and was laid before both Houses of
Parliament on 9 December 2008. It comes into effect by order of the
Secretary of State on 6 April 2009 and replaces the Code issued in 2004.
A failure to follow the Code does not, in itself, make a person or organisation
liable to proceedings. However, employment tribunals will take the Code into
account when considering relevant cases. Tribunals will also be able to adjust
any awards made in relevant cases by up to 25 per cent for unreasonable
failure to comply with any provision of the Code. This means that if the
tribunal feels that an employer has unreasonably failed to follow the guidance
set out in the Code they can increase any award they have made by up to
25 per cent. Conversely, if they feel an employee has unreasonably failed to
follow the guidance set out in the code they can reduce any award they have
made by up to 25 per cent.
Am having a read myself to see what it says...
Actually, easier to read here and you can download a copy...
You have the right to appeal against this decision. Should you wish to appeal you must write to ***** *****, staing clearly the grounds for your appeal, within 5 wokring days of recieving this dismissal notice. Isnt 5 days a little harsh? -
Yours sincerley,
**** ****
Take a look also at this guide for employers (non statutory, but considered good practice).
What should an appeals
procedure contain?
It should:
• specify a time-limit within which the
appeal should be lodged (five
working days is commonly felt
appropriate although this may be
extended in particular
circumstances)
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The company may terminate your employment without notice if you are guilty of gross misconduct, gross negligence, of gross incompetance, or have committed a serious breach of your obligations under this agreement, or have carried out any action such as to give the company resonable cause for losing trust with you.
Yes, that is a fairly standard clause but all it means is that you can be summarily dismissedAFTER an investigation into your conduct and AFTER a disciplinary hearing has been held where the employee has had an opportunity to put forward their side.
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Ok...they should have followed this procedure as laid down in the statutory code of practice...
Establish the facts of each case
Inform the employee of the problem
Hold a meeting with the employee to discuss the problem
Allow the employee to be accompanied at the meeting
Decide on appropriate action
Provide employees with an opportunity to appeal
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If you want my Advice (some one who is going through something similar but further in to the process)
First thing is keep all Correspondence and envelopes (proof of date of arrive etc) if you must contact the ex'empolyer do it by mail and keep copys of everything.
Sit down and write down an account of what happened over the period (every thing from day one, inc who when and witnesses) and as accurate as possible. (so a third party can read it and be up to speed without you telling your story over and over and missing details etc)
Book an appointment to see some one at ACAS (www.acas.org.u ), not to put the CAB down but I found ACAS to be the guys for Employment issues (obviously)
Important Take notes!! Go to ACAS and write down every point they make, i took a Dictaphone with me to every meeting, bit excessive but you'll be surprised how handy it is.
Do lots of reading up and make a list of the things they Did/Didn't do that breaks the Disciplinary procedure.
Don’t forget you don’t get a massive amount of time to get this done before the dead line to make a Claim with the Tribunal.
Brilliant, thats great thanks.
Good advice K2egd.
This morning Iv have sent them a SAR, and then a separate letter to the man it tells him to appeal to, asking for a copy of the warnings, letters etc, because if I wait the 40 days for the SAR reply, and THEN complain to them, plus the time from 7th April which they say is the last day he worked, I'll have gone over the 3 month deadline.
The appointments with Acas? Can you meet with someone? Like at CAB?
Im going to check out their website properly now, thanks
ASk them for confirmation of the date the will comply with the SAR and advise that when ET1 is submitted you will reserve the right to amend the ET1 dependant upon the SAR. But be aware that the Tribunal will not be happy if you have no claim without the SAR, it is not supposed to be used simply as a fishing exercise.
Is this Unfair Dismissal?
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Originally Posted by flubdub
