unfair dismisal. do I have a case?

[DNA123]

Ell-enn sorry it's taken so long to get back to you. I took a while for my work colleague to arrange those papers.

 

I have just got off the phone with HR who tell me I cannot go back into the building to get copies of my absences history. They say because I have been dismissed that I am not allowed past reception. (perhaps I shouldn't mention to them that I made it up to the 4th floor earlier today for about 20 minutes).

 

They say they will put it in the post 1st class for me and if it does not arrive in the mornings post then a representative from HR will meet me at reception tommorow and hand me a copy. They said it would be too late to arrange collection for today.

 

I did have all of these details on saturday morning but in the shock of being dismissed I left them behind.

 

I have the company policy details on disciplinary and attendance though. I am at a library just now around the corner from work so I will be back on line in about an hour when I get home.

[Ell-enn]

That's fine post when you get home. What date do you you have to lodge your appeal by?

[DNA123]

They say I must appeal within 7 days of receiving the appeal forms in the post. they said that should any day now.

 

I have the policy and procedure papers here. what do you need to know from it Ell-enn?

 

Afraid I don't have a scanner but if you can give me a few minutes I can type up the section on absences.

[DNA123]

This is the main section of absence details.

 

------------------

 

Absences

 

Where any unplanned or unauthorized absence becomes unacceptable,

either because you have a number or absences of a short duration over

a period o time or because o a long-term continuous absence, the matter will be investigated and you will be asked to attend a formal meeting to determine the most appropriate action to resolve the problem. if ill-health is a factor then you may be asked to produce medical evidence in support or referred to the Occupational Health Department for advice.

 

For short-term intermittent ill-health absences, you may receive a written

warning and be informed that your attendance will be kept under review. If

there is no improvement, then ultimately you could lose your job. or long-

term continuous ill-health absence, medical advice may be sought on a possible return to work date and your likely future attendance. If a return to work date and acceptable future attendance cannot be relied upon in the foreseeable future, then you could lose your job. In all ill-health cases,

particularly those involving disability, management will review your duties

including your hours and days of work to see whether any reasonable

adjustments can be made to improve your attendance If you have not reported your absence properly or at all or the absence is not ill-health

related, then the absence may be treated as a disciplinary issue.

 

-------------------

[Ell-enn]

Hi there, sorry for the delay - just got in from work (got held up with employee problem that needed sorting before tomorrow).

 

Crikey - their absence policy leaves a lot to be desired - really caring lot aren't they.

 

Is there a list of what level of absence triggers each stage of disciplinary action? for example 3 instances of absence in a 6 month rolling period = 1st stage verbal warning, further 2 instances in a 12 month rolling period = written warning, further 1 instance = final written warning, further instance = dismissal. or something like that?

 

getting all the facts right may take some time but it's important to establish if they have followed their own procedure.

 

Also, do you know if anyone else has been disciplined for absence in the last 12 months?

[DNA123]

There absence policy scares me. There is a guy in my office, been with the firm 25 years. He had both of his ankles replaced and was called into a disciplinary because his recovery time took longer than he had specified to them.

 

I have not seen anything wich gives details of levels of disciplinary action for absences. There is apparently an envelope on it's way to me now with everything I need to know about my dismissel. I am hoping it will answer all the questions. I will let you know as soon as it arrives or as soon as I collect it from reception.

 

As far as them following their own procedure, I have doubts.

 

They sent me to hostpital in an ambulance and when I tried to return they sent me home and said come back in a week. When I came back they sacked me. Calling the insident an "absence" seemed harsh.

I only did as they told me.

 

What kind of procedure do they call that?

[Ell-enn]

It will be interesting to see what they send you!! In cases of dismissal employers are required to show that they have acted reasonably - especially in absences involving illness. If your absences have been covered by medical certificates and hospital records then I think they are on very shaky ground. From what you tell me their process seems to leave a lot to be desired. Something doesn't seem quite right. However, as soon as we get all the facts in a "timetable" fashion I'll know what we're dealing with and we should be able to put together a feasible appeal.

Was the guy who had his ankles replaced actually disciplined (surely not!)or was it just an investigatory meeting?

Also, what type of business is it and what is your job title.

What is the impact in your office if someone is off sick - is it difficult to provide cover? i.e. do they need to get temps in (sometimes business don't like paying for temp cover and use dismissing an absentee as a way of saving money)

 

Try not to worry too much -I'm sure we'll come up with something positive.

Let me know as soon as your paperwork arrives - we need to start work on it asap.

[splashin]

Absences

 

Where any unplanned or unauthorized absence becomes unacceptable,

either because you have a number or absences of a short duration over

a period o time or because o a long-term continuous absence, the matter will be investigated and you will be asked to attend a formal meeting to determine the most appropriate action to resolve the problem. if ill-health is a factor then you may be asked to produce medical evidence in support or referred to the Occupational Health Department for advice.

 

For short-term intermittent ill-health absences, you may receive a written

warning and be informed that your attendance will be kept under review. If there is no improvement, then ultimately you could lose your job. or long-term continuous ill-health absence, medical advice may be sought on a possible return to work date and your likely future attendance. If a return to work date and acceptable future attendance cannot be relied upon in the foreseeable future, then you could lose your job. In all ill-health cases,

particularly those involving disability, management will review your duties

including your hours and days of work to see whether any reasonable

adjustments can be made to improve your attendance If you have not reported your absence properly or at all or the absence is not ill-health

related, then the absence may be treated as a disciplinary issue.

 

Hi DJ

The bits i've highlighted are what we need to really concentrate on.

Did you get a letter inviting you to a meeting to discuss absences?

Did you get a copy of minutes and details of what would be required to resolve this issue after the meeting?

Where you ever referred to Occ Health for there advice?

Since getting final warning have your total number of days absent from work amounted to more than before the warning commenced?

 

I took my case to court never ever thinking I would win hands down. Similar circs to yourself absent for days (very sick) returned to work and was given final warning, which told me that my attendance must improve during this period or I could lose my job. They also said that if they felt during the final warning period I would not be able to achieve a successful outcome they could terminate the contract before warning period had elapsed. The final warning period ran for 12 months I had 2 absences totaling 6 days both covered by medical certs during this time. They informed me that I was to lose my job 16 days after the 12 month period had ended because of these absences. I was gob smacked. My last absence was some 6 months before the 12 month period ended. If I was not satisfying there warning about my attendance why didn't they sack me after this absence, where they waiting for my to stay off again.

Anyway I got no help from the union I was with, they were total gob****es (excuse the French), they never spoke a word in my defense. Never contributed to one paragraph of my statement's made to HR and also never helped once with preparing my court case.

The best thing I ever did was to get a Subject Data Request. You can get the info from Freedom of Information Act. Ask for all your details held by your employer. It takes 40 days and costs £10 (i think). Everything that your employer holds about you must be released to you by your employer, every letter, every comment made, managers reports, any emails with your name on. This will aid you should you take the matter to court, but do it sooner rather than later, you never know what is going to happen.

In your appeal you must quote the wording they use in your contract of employment regarding absence. For instance the warning informed me I must make an improvement. As long as the days off are less than before the warning was issued days off total, you have shown improvement. Also make sure that they have complied to every single detail in the employment contract. eg. Occ Health, Letter stating what improvements were required, Did your manager try to help you with any reasonable adjustments to help you improve. If they haven't done these things then they have defaulted there own rules. It was an extremely tough time when it was happening to me and went on for nearly 12 months in total before it finally ended. I nearly lost my home, thought no employer would want to employ a person like me because of the stigma DISMISSAL due to unsatisfactory attendance, I considered lying to new employers about my last employer so they would never know or be able to find out. Even when I won the case for unfair dismissal I still felt that stating to a future employer I left my last job because I was unfairly dismissed might show me as a problematic person, anyway I'm glad I never crossed that line by lying to cover up there doings. I was open with my new employer regarding the situation and was able to explain further in the interview, I was employed with immediate affect they were not interested what had gone on before, they were more concentrated on how I would work for them. Each employer have there own set of rules when it comes down to managing sickness and absence. Should you not meet these requirements then they will carry out the rules they have in place. Please please do not despair, believe in yourself. If you feel that you were doing all you could to be successful in completing the warning period then do take this matter further. WARNING Beware of time limits set upon you regarding proceedings, if you don't meet these times set, then you won't have a leg to stand on, your case would be thrown out.

Also have you been sent a full detailed letter to the run up to being told about your dismissal, of their reasons to making this decision? If they haven't then how do you know what you must appeal about????? I believe it is in the employment law that this must be done prior to any appeal being made. After all if you don't know what they say you have done and you do appeal, you may be shooting yourself in the foot by admitting anything what's ever as they might not of even mentioned these things in your reasons for dismissal.

The man in HR wasn't the person who decided you had to go, it was your line manager decision firstly, who then may have sort advice from HR. The line manager always starts the ball rolling although most don't have the balls to tell you it was them, they make out it was HR. GGGRrrrrrr

Please ask me for any advice and I will be willing to pass all my knowledge onto you. I was finally paid a sum of nearly 50K for there unfair dismissal practically 4 x my annual salary. So there is a system there which does protect employees and the way employers treat them.

You must concentrate on the final warning period only as this gave you a new set of contractual rules to follow to all the other employees. If you complied with these rules set then you have got a really good case. I concentrated on this period of time only from date of final warning issue to date of my dismissal. My employer raked up everything about my past, from the day I started, there statement about me was at least 10" thick. The courts were not interested in ward had gone on before. They were only wanting info from the final period and the reasons for the decision to dismiss. The employer sent the top man from HR to defend the case in court with the person who made the final decision on my dismissal. These were 2 people were very high up in their positions, so I would of expected them to know what they were doing in making the decision to dismiss and also in the way the court would expect them to clarify this. I wiped the floor with them. By sticking to the final period and this only, I do believe aided me with the courts outcome of my case. The employer kept bringing up the past to back up why this dismissal was made. Irrelevant. Thats what the court said, when a final warning is issued then all decisions must be made on this period only, it cannot allow for past issues to be included. BELIEVE IN YOURSELF - IF YOU HAVE DONE NO WRONG, DON'T LET THEM MAKE YOU FEEL LIKE YOU HAVE.

SPLASH :D

[patdavies]

 

The best thing I ever did was to get a Subject Data Request. You can get the info from Freedom of Information Act. Ask for all your details held by your employer. It takes 40 days and costs £10 (i think). Everything that your employer holds about you must be released to you by your employer, every letter, every comment made, managers reports, any emails with your name on.

 

Data Protection Act, not FoI.

 

You are entitled to receive a copy of all personal data held in a relevant filing system. This does not include payroll data, as that is an exempt system; also it does not include all the list above unless the item is contained within a relevant filing system. (ie a filing system that enables retrieval by name). It certainly does not include "any emails with your name on", unless your name is in the subject line and the emails are filed by subject; not just in an inbox.

[Ell-enn]

DNA123 - no two cases of dismissal are the same and should not be compared.

 

We need to concentrate on your circumstances - we still have the appeal to deal with before we consider embarking on the ET route.

[DNA123]

Splash mate, thanks for telling me your story.

It's good to know employers do not have the right to tell you whatever they want and expected you to just sit there and take it.

 

It's easy to become despondent about the situation thinking that nobody will want to employ you after you have been dismissed for reasons of attendance.

 

In fact I remember thinking as I was escorted off the premises (down the cargo stairs and out the back of the building I might add) I was thinking something like "Oh crap I'm gonna end up flipping burgers and stacking shelves"

 

 

----------------------------------------------------------------

---------------------------------------------------------------

 

 

Ell-enn I have received in the post this morning :

 

- A cover letter explaining that I have been dismissed and that the appeal forms are on their way.

 

- A copy of the request for me to attend the disciplinary meeting on the 15th September.

 

- I copy of the letter sent to the head of personnel from my department manager stating my last absence.

 

- A copy of the final warning issued to me by the department manager at the time.

 

- The back to work form completed by my line manager.

 

- A record of discussion form done by the new department manager following my last absence stating the matter would now be referred to the head of personnel.

 

- The Independent Notes taken by a third part present at the disciplinary detailing the minutes of the meeting.

 

 

 

I would like ideally to scan these documents and e-mail them to you but I am having trouble locating anyone with a scanner just now.

 

Do public libraries have these facilities you think?

Failing that I should be able to get hold of a scanner tomorrow night.

[DNA123]

Forgot to mention there is also a sheet with list of dates I have been absent.

[Ell-enn]

That's great that you have a list of absence dates. If you can get to use a scanner tomorrow night that will be fine, we've got time to put things together for the appeal.

 

As I said, no two cases are the same and we need to concentrate on getting the appeal done first. It's probably best not to dwell on what might happen at an ET or what (if any) compensation you may or may not get. We'll deal with that if it goes that far.

 

As soon as you have the scanned docs ready, let me know and we'll discuss, but if you have any questions in the meantime please don't hesitate to ask.

 

Ellenn

[DNA123]

The fella who had his ankles done was brought in for a disciplinary. I remember speaking to him at the time. He was in allot of pain and needed to be at home resting but he was back in work with a union rep. He was very angry about the whole thing given the many years service he had given.

 

The office has always been understaffed. My line manager is always promising more staff will be brought in but it never seems to happen.

 

I'm looking at the list of my absences they have sent me and they have listed the day I fell unconscious in the office and sent to hospital as a part absence and added it to the total.

 

unbelievable :?

[DNA123]

Thanks Ell-enn, I do have another question actually.

If I can get the dismissal overturned would a future employer be told I left of my own accord or would it still be listed as a dismissal?

[Ell-enn]

If the appeal is successful and you are reinstated - then you have not been dismissed, if you leave it will be of your own accord.

 

If your employer called an ambulance and sent you to hospital, that cannot (should not) be counted as part of your absence.

[DNA123]

PC world doing scanners for £30. I going to hot-foot it down there in a bit and see if I can get one. Keep meaning to buy one.

[OrangePrimate]

If the appeal is successful and you are reinstated - then you have not been dismissed, if you leave it will be of your own accord.

 

If your employer called an ambulance and sent you to hospital, that cannot (should not) be counted as part of your absence.

Sorry Dna for highjacking your thread but Ell-enn, can i ask a quick question?

 

I am interested in your comment above. In the event of an employee being in hospital for treatment and/or, as in DNA's case an ambulance being called at the place of work, is it within the individual Companies own Sickness absence Policy/Procedure that would determine the "cannot (should not) be counted" or is it covered anywhere in specific employment regs or HR policies?

 

Our company is trying to dismiss someone who has had a fair amount of sickenss over last 18mnths (2 mini strokes, hospitalisation for gall bladder) and finally an accident at work! (slipped on flooded out tiles in bathroom, Managers aware of flood an hour previously, no signs put out or door blocked) and damaging hip quite badly.

 

As an Employee Rep I am helping them fight this, but the Company just keep saying "its the policy to treat all absences the same, as an absence) and its not as if we are a small office!!

[Ell-enn]

Orange Primate - hi. Employers, when considering dismissing an employee should at all times be seen to be acting fairly. The question is - is an employer acting fairly by taking into account absences where the employee is hospitalised and which are beyond the control of the employee? - if not the dismissal could therefore be classed as unfair.

 

However, no two dismissals are ever exactly the same as different companies operate different absence/discipline procedures. BUT they must be seen to follow whatever policies they have in place consistently and fairly. Employment Tribunals come down hard on employers who do not act fairly or consistently or indeed follow their own published procedures.

It is always easy to make assumptions based on what has happened to someone else, but unless all the facts are available the situation can't be confirmed. If you'd like to start an new thread of your own, and are willing the post all the details I'll happily advise and follow the process through with you.

Hope this is helpful.

[DNA123]

Ell-enn, I am at a friends now who has a scanner. I may need to disconnect while I scan the papers.

I have just spoke to HR who say my appeal forms have been recalled by the HR head office because they have wrong date on them. They say I should have it by the end of the week.

 

How should I send these papers to you once they are scanned?

 

Thanks Ell-enn

[Ell-enn]

Hi there, if you send me a PM (private message) you can send them as an attachement.

 

Once I've received them I'll let you know and we'll get started.

[DNA123]

Files scanned Ell-enn.

Done them as j.pegs, hope thats ok.

[Ell-enn]

jpegs should be fine - have you sent them to me in a PM?

[DNA123]

Ell-enn, I wasn't sure if you got my PM earlier. having a little trouble uploading the files. will be quick as possible.

[Ell-enn]

Hi there, how are you getting on with scanning the documents?