unfair dismisal. do I have a case?

[Ell-enn]

Do you have a copy of your employer's disciplinary policy and absence management policy i.e. what levels of absence trigger each level of disciplinary action? periods of hospitalisation should (in best practice) not be counted in absence discipline.

 

We need to establish if they are following their own procedures and applying them fairly.

 

Can you give more details?

[Ell-enn]

Can you give the following information in the meantime:

 

1. Are you on a temporary or permanent contract?

2. If permanent - how long have you been there?

3. Were you advised of your right to appeal against dismissal?

[Ell-enn]

Thanks for the info -we're getting there ....

 

Its important that you do appeal - the appeal should be heard by a manager or director more senior to the person who made the decision.

 

A few more questions - (sorry, I'm just trying to get as much of the picture as I can to be able to advise you further).

 

1. At each stage of disciplinary were you advised in writing that your attendance was subject to an investigatory meeting?

 

2. At each stage were you advised you had the right to be accompanied by a colleague or trade union rep.

 

3. If so, did you exercise your right to be accompanied?

[Ell-enn]

Thanks - it would have been helpful, but not essential, if you'd taken a colleague with you. However, we have to deal with what we have - you must make sure you take a trusted colleague (or union rep - are you in a union?) to the appeal. Have you had any written notes of the disciplinary meetings?

 

Once you can let me have the details of the company's disciplinary policy/absence policy I will be able to give you more information.

 

What kind of business are we dealing with - is it public or private sector? manufacturing or administration.

 

Also - what is their track record with dismissals for absence?

 

I know all these questions will be a pain - but we have to get it right to take this forward.

 

Hope this is helpful to you - try not to worry too much until we get to the appeal.

[Ell-enn]

That's great. We'll get to work on your appeal when you let me have those details.

 

I'm happy to answer any questions any time - you'll probably think of a few more soon.... lol

 

If you think I've been of help, please feel free to tip my scales:)

[Ell-enn]

When I said tip my scales - I didn't mean make a donation - you shouldn't donate until you know if you still have a job and can afford it.

 

Tipping scales is another way of saying add a reputation point (the scales are at the left hand side at the bottom of the box with my name and details.. lol

[Ell-enn]

It would depend on the job you were applying for as to what is asked for in a reference. A lot of employers are now sending out "standard" references i.e. confirming the dates of employment, and position held and nothing else, this avoids the chance of them being sued by former employees.

 

"The House of Lords held that an employer who gives a reference in respect of a former employee owed that employee a duty to take reasonable care in its preparation and would be liable to him in negligence if he failed to do so and the employee thereby suffered economic damage" Mason Hayes+Curran April 2006.

 

There is nothing to stop you looking for another job in the meantime - if your appeal is successful and you are reinstated, you may not want to continue working for that company anyway.

 

Hope this is helpful.

[Ell-enn]

no problem, honestly - I'm an HR Practitioner by day and certainly don't mind helping with employment problems on this site. I have a particular hatred for unfairness and always try to ensure the employees under my duty of care are treated fairly (even if they do try my patience from time to time lol).

[Ell-enn]

P.S. you'll find a lot of people much smarter than me on this site ! it's just that HR and mediation is my best subject......

[Ell-enn]

djgordyp - did anyone inform H&S Inspectors? surely this can't be allowed to continue. Also are the Polish workers legal - if there is any doubt Immigration should be informed. These people are being exploited and it's WRONG. If you have any doubts at all contact the Health & Safety Executive

HSE Infoline 0845 345 0055

[Ell-enn]

You're absolutely right Goldlady - as I said before, more tribunals are lost because employers haven't followed their own published procedures, never mind the legal protocol. Second on the list for losing is being inconsistent - if an employer does not take action against one employee for the same offence then they shouldnot discipline another. In many cases it won't get to a tribunal, as soon as the employer's lawyer knows they've not followed procedure they settle out of ET.

Employees will continue to be treated unfairly until HR practitioners start being practitioners and educate those at the top - i.e stop being used as management tools!! Empathy without Sympathy and Assertiveness without Aggression is a good starting point (sorry, on my soap box again!)

[Ell-enn]

DNA123

 

Can you let me have a list of your sickness absences over the last 12 months i.e. first day of absence and duration.

 

I then need to know the dates of each disciplinary and what stage warning you were given at each stage.

 

If you could send me this while we are waiting for copies of the policies I can start to put something together.

 

There will probably be lots of other questions I need to ask - but they're all necessary if we are to put a good appeal forward.

[Ell-enn]

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

[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?

[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.

[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.

[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

[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.

[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.

[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.

[Ell-enn]

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

[Ell-enn]

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

[Ell-enn]

Hi DNA123, I've got all the documents I need now - but will probably need to ask a few more questions, so keep logging into this thread.

 

I will work on the wording for your appeal over the next day or so concentrating on the circumstances surrounding the last period of absence as this is what we will use to declare the dismissal unfair. Keep positive.

 

Ell-enn

[Ell-enn]

Hi, sorry, a few more questions:

 

1. Did you sign the notes sheets? I can't make out the signature.

 

2. On your 12th September record of discussion sheet with your manager it states that a medical referral form was completed at your return to work interview on 28th August, but that you had still not been seen by Occupational Health. Is that still the case - did you get an appointment with OH?

 

3. Did they at any time ask for your permission to request a report from your doctor?

 

4. Were all your absences connected with the same medical condition?

 

 

 

Thanks

 

Ell-enn

[Ell-enn]

OK that's fine - I think I have everything I need now. Just one last question, do you have a copy of the letter from your doctor? also (sorry, one more!) do you now if the OH officer would have made a file note that you were sent home?