Capability Hearing

[Clare_L]

Hi

 

Hope someone can help and offer some reassurance. I really cannot afford to lose my job. I am a single mum and have a lot at stake here.

 

Bear with me as this may come across long and boring and maybe a little confusing but will try and make it as clear as I possibly can.

 

Last year (June 2007) I was issued with an informal warning and refered to occupational health for time of sick. This was due to 4 occassions of sick since October 2006. I was then off ill for one day in August and 3 hours in August where they sent me home with a migraine (working at a computer screen for 5 hours a day and only a 10 minute break which is another issue I have). I was issued at this stage a final written warning as they had taken into account some emergency leave I had to take off with a sick child ( I am a single mum and DO have a contingency in place should my son be ill, but circumstances were unavoidable) Looking into this final warning, I appealed as I am aware that a parent is entitled to take time off work to deal with emergencies and are not to be penalised. This warning was revoked. My record has been good since then until I was signed off by my GP in March this year for 2 weeks. I followed the correct procedure, kept my employers upto date on a daily basis. They have now called me in for a Formal Capability Hearing on the 14th April. Firstly, my manager stated that the outcome would probably be dismissal, but she would "fight" for me to keep my job as I am very good at it. I pointed out to her that I was not on a final warning as it had been revoked, therefore dismissal was not the right action to take. She argued this for a bit until I showed her the letter to say the warning had been revoked, but she hasnt come back to me since then (I still have the letter). They also advised that I could have a witness, which I have, but was advised they were not allowed to talk during the hearing. This contradicts the Procedure manual they gave me as it states in there that I am allowed a representative to speak on my behalf and to confer and ask questions, but not answer them for me. Also, the manual also states "This procedure is not appropriate for handling cases of misconduct, which are dealt with under the Disciplinary Procedure. Therefore, it goes without saying that an employee attending a capability interview shold not be made to feel that they are being subjected to a disciplnary process" Yet further on in the manual it states in its "Outcomes and Actions" that a warning can be issued. They are also saying that I am not allowed any time off sick now for a 12 month period, even though we work in a rolling year. Is this correct? I am going to be calling ACAS today and also meeting up with my representative so we can get my paperwork ready, but wanted to get an idea from you guys too.

 

Thanks for any help, sorry if I have waffled, but ask if there is anything you are not sure of.

 

Clare

[advisee]

They're talking complete rubbish. Saying that an employee can't have time off sick is contrary to your statutory rights.

 

Your person is allowed (by law) to speak for you, however you may prefer to just have them take notes.

[bed32]

You have a right to take time off to look after sick children. If they try to hold that against you then any action they take is almost bound to be unfair. Do you have anything in writing to confirm that that contributed to the warning they gave you?

[Clare_L]

I do have a letter that states the reason for the warning included the time I took of for childcare issues, but as I appealed this they revoked the final written warning. The letter I also got from them states that they need to see an improvement which meant no more than 3 occasions off sick in 6 months or 5 in 12 months. Well in 6 months I have only been off sick once which was the one where I was signed off by my GP. Most of the letters seem to contradict each other.

 

I have since spoken to ACAS and according to them, you CAN be dismissed for absence, but not if they have a sickness procedure in force and follow it accordingly which they dont appear to be doing. They did suggest a written grievance as they dont appear to be following their own procedures. Despite the stress they have been putting me under this past 6 months, I have continued to do my job and do it well. I could have taken the easy route and got my GP to sign me off with stress!!!!

 

Also, in this scenario, is there a case of discrimination just because I am a single mum with childcare issues? My mother is disabled, so can only have my son depending on the circumstances and what his illness entails. His father is recovering from cancer so again, him having his son is not always practical. The only time I have had to take more than a day off with him was when he had chicken pox, and I took as holiday, but they still bring this up, even though this was over a year ago.

[Clare_L]

Also to add, they witheld my pay increase because I was under disciplinary. They have now given me my payrise, but refuse to backdate it to the date it should have taken effect, even though the warning at the time was revoked.

[kennythecelt]

An expert on employment will probably help you soon.

 

In the meantime, try to relax as we can help you!

 

Can you consider and reply to the folowing as this will help later.

 

"Last year (June 2007) I was issued with an informal warning and refered to occupational health for time of sick.".

 

Why were you off sick, is it related to any other sickness period?

What did this referral consist of, did you complete it, have you any paperwork from OH? (Your employer will have received a copy but did you get one). Were you interviewed by your employer upon your return to work, were you asked to sign anything?

 

"sent me home with a migraine (working at a computer screen for 5 hours a day and only a 10 minute break which is another issue I have)."

 

Who sent you home, was it a manager, are they still about if needed to give evidence and will they confirm your events?

Do you have a copy of the H&S policy re computer screen use and what does it say about breaks from that activity? Have you raised this issue with your employer previously? Did your employer interview you upon your return to work, did you mention the need for a break, was that recorded?

 

"some emergency leave I had to take off with a sick child ( I am a single mum and DO have a contingency in place should my son be ill, but circumstances were unavoidable)"

 

How many times have you had to do this, how long for on each occassion. What does it say in the manual? (word for word)

 

"This warning was revoked."

 

What were the actual grounds of the hearing in the hearing letter you received. What does the revokal letter say- keep that letter safe (plus anything else relevant)

 

"My record has been good since then until I was signed off by my GP in March this year for 2 weeks."

 

By "been good since then" I assume you mean there were no absences at all until the 2 weeks illness.

What was the illness, was it related to any other period of sickness. When you returned to work were you interviewed, did you sign anything?

 

"Firstly, my manager stated that the outcome would probably be dismissal"

 

This is very significant as it pre judges the whole outcome. Were there any witnesses. Who might have heard? Were you upset and did you confide in anyone? Are they willing to back you up? Is this a manager who is aware of the previous events and has she interviewed you for sickness before? Are there any tensions between you?

 

You have a copy of the procedure manual which is good. We will handle that later.

 

From the sounds of it, do you work in a local authority or similar environment by any chance?

 

Are you a member of a union?

 

Are there any aspects of their procedures which you feel they have not followed, to the letter?

 

Can you please answer these points so that someone can consider them.

 

Remember, a problem shared is a problem halved. Regards, Kenny:)

[bed32]

I'm not expert - but it sounds as if you are on pretty firm ground here.

 

Even though the they have withdrawn the warning it is still strong evidence that they are taking action against you because you took time off to look after the child. They are not allowed to discipline you for that reason and if they now try to dismiss you for something that seems closely related then you would have a strong case for unfair dismissal.

 

That of course assumes that you were reasonable in taking the time off - taking a day or two is fine, much longer and they could say that you should have made alternative arrangements and come back to work yourself. You imply that you did so when your son had chicken pox - but as that was more than a year ago they really shouldn't be referring to it still unless they want to show that it is part of a trend.

 

You certainly can be dismissed for being off sick but it would be up to the employer to show that your sickness genuinely impacted your ability to do your job. If you are within the limits set out in the letter (even though it has been revoked) you will be fine there too.

 

You should be keeping a record of everything that is said to you, formally or informally, and try to make notes about what has happened in the past. I think you should ensure that you cooperate with any process they put you through - however unfair that may seem - but make sure that any allegations they make against you that you do not agree with are challenged at the time and confirmed in writing.

[Clare_L]

An expert on employment will probably help you soon.

 

In the meantime, try to relax as we can help you!

 

Can you consider and reply to the folowing as this will help later.

 

"Last year (June 2007) I was issued with an informal warning and refered to occupational health for time of sick.".

 

Why were you off sick, is it related to any other sickness period?

What did this referral consist of, did you complete it, have you any paperwork from OH? (Your employer will have received a copy but did you get one). Were you interviewed by your employer upon your return to work, were you asked to sign anything?

 

I was off sick with flu symptoms, one of those days was a rota'd day off, but they still class this as 2 days sick. I did get a copy of the letter from OH, but I had to keep requesting it. We did go through the "back to work" paperwork which I had to sign.

 

"sent me home with a migraine (working at a computer screen for 5 hours a day and only a 10 minute break which is another issue I have)."

 

Who sent you home, was it a manager, are they still about if needed to give evidence and will they confirm your events?

Do you have a copy of the H&S policy re computer screen use and what does it say about breaks from that activity? Have you raised this issue with your employer previously? Did your employer interview you upon your return to work, did you mention the need for a break, was that recorded?

 

I was sent home by one of the team leaders, all the managers were in a meeting. This was checked with HR first though. I dont have a copy of the computer H&S policy re:computer usage as I have checked and the HSE goverment guidlines are just that, not law. I have raised the issue as I have a lot of headaches since working there, but I just take plenty of paracetamol unless they turn into a migraine which it did on this one occassion. I have since mentioned the breaks after my recent absence as it has recently been reduced from 15 minutes to 10 minutes. I was advised that they have checked this out and are following the guidelines appropriately.

 

"some emergency leave I had to take off with a sick child ( I am a single mum and DO have a contingency in place should my son be ill, but circumstances were unavoidable)"

 

How many times have you had to do this, how long for on each occassion. What does it say in the manual? (word for word)

 

In the past 12 months, I have taken 7 days off with childcare related issues. I have offered to make up the time on every occassion but have always been told No! Although some colleagues always get to make up the time. I have always either taken it unpaid or used my holiday allowance. Each occassion has been one day, or 2 at the absolute most. The manual says "Employees have the statutory right to take time off work to deal with an emergency involving someone who depends on them (s dependant). This includes, wife, partner, child or parent, or someone living with the person as part of the family. A dependanct may also include someone for whom the employee has primary carer responsibility or is the only person who can help in an emergency. An emergency is when a dependant is a) ill and needs help b) is involved in an accident or assaulted c) needs help to arrange their longer term care d) needs help to deal with an unexpected disruption or breakdown in care, such as a childminder or nurse failing to turn up e) goes into labour

The person is entitled to enough time to deal with the immediate emergency, eg if a child is taken ill the parent can take enough time off to deal with their initial needs, such as taking them to a Dr and arranging for their care but will need to make other arrangements with their manager to meet any longer term responsibilities. Time off will be without pay unless the individual elects to make up the time or subject to agreement with their manager, uses annual holiday. In exceptional cases, managers may, at their discretion, grant special paid leave.

 

"This warning was revoked."

 

What were the actual grounds of the hearing in the hearing letter you received. What does the revokal letter say- keep that letter safe (plus anything else relevant)

 

The initial letter I received (refering to the letter where my warning was revoked) stated it was a capability hearing due to the time I had taken off for sickness and absences due to caring for my child. The letter that says it has been revoked was written by my new Section Manager as the Section Manager who carried out the warning had retired. I spoke to my manager at the time and gave all the evidence that I had got from the ACAS website, and she forwarded the information on for me and then just came back to me and said they were going to revoke the warning. That was in November 2007 and I have been requesting this in writing since then, and have just received it in the last few weeks as I made myself a nuisance.

 

"My record has been good since then until I was signed off by my GP in March this year for 2 weeks."

 

By "been good since then" I assume you mean there were no absences at all until the 2 weeks illness.

What was the illness, was it related to any other period of sickness. When you returned to work were you interviewed, did you sign anything?

 

In 6 months, there have been 2 childcare issues/days and then the 2 weeks sickness which was flu and headaches which are apprently associated to a cyst I have on my head which is now going to be removed this month. No connection to any other illness. When I returned to work, I was interviewed by my manager who went on to tell me that this would most likely lead to dismissal, but she would "fight" my cause as my standard of work was very good. I had to sign a back to work sickness form.

 

"Firstly, my manager stated that the outcome would probably be dismissal"

 

This is very significant as it pre judges the whole outcome. Were there any witnesses. Who might have heard? Were you upset and did you confide in anyone? Are they willing to back you up? Is this a manager who is aware of the previous events and has she interviewed you for sickness before? Are there any tensions between you?

 

There were no witnesses, she took me aside, and doubtful anyone could have heard. I was upset as the consequences of me losing my job are enourmous. I confided in a colleague who is going to be my witness/representative. She has never interviewed me for sickness before. No tension as far as im aware.

 

You have a copy of the procedure manual which is good. We will handle that later.

 

From the sounds of it, do you work in a local authority or similar environment by any chance?

 

I work for a utilities company!

 

Are you a member of a union?

 

Not a member of the union as from what I have heard from fellow colleagues, they are not very good and their knowledge is not great.

 

Are there any aspects of their procedures which you feel they have not followed, to the letter?

 

The part where it says I can make up time for absence, I have always been told I cannot do this. Plus the various letters seem to contradict each other.

 

Can you please answer these points so that someone can consider them.

 

Remember, a problem shared is a problem halved. Regards, Kenny:)

 

Sorry if this seems so long winded! Thanks Kenny:)

[kennythecelt]

Thanks Clare:)

 

Its not long winded at all!!

 

As I am not an HR expert, I am going to ask someone else to help you.

 

I have however been involved as an employee in sickness hearings where I went through something similar to you and as a manager where I have been on the other side.

 

If the facts are examined closely enough, you may on occassions find that procedures have not been followed. However, there would also seem to be other factors working in your favour, at least in my opinion.

 

Regards, Kenny

[kennythecelt]

Hi again

 

have now made contact for you. Please note that it will take some time as there is much demand on her services.

 

Best of luck to you, try not to worry, Kenny.

[Sidewinder]

Some excellent advice above. The employer must consider the fact of the cyst being removed as this could reassure the them that a previous cause for absence is unlikely to be a risk factor in future. Any disciplinary or capability procedure must also be an opportunity for the employee to discuss causes for the absence and possible remedies. Your absences for childcare cannot be considered as a reason for taking action unless they are deemed to have been 'unreasonable'. Taking your circumstances into account this cannot possibly be the case for one or two days at most.

 

Regarding the migraines, although there are only guidelines for display screen use, there should be a risk assessment in place specifically for display equipment and appropriate action to be taken to reduce the risk of eye strain or other problems. It may be worth asking to see this as I would be surprised if it differs from the recommendation of 5-10 minutes of non-screen activity in any period of 60 minutes of screen activity. The employer is also responsible for payment for an eye test (and even corrective treatment if needed specifically for screen use) if you are a display screen user.

 

Good luck.

[Clare_L]

Many many thanks for all your help guys. I will wait patiently until someone comes along. I have another week off on holiday at the moment, so dont need to get my statement back to them until the end of next week.

 

I have just come back from meeting with one of my work colleagues, who is going to be sitting in and taking notes for me during the hearing. We have gone through everything with a fine tooth comb and it has come back that I should not be on any form of disciplinary as all the dates fall within the guidlelines of their terms and conditions. Will be calling HR tomorrow and have a number for Employment Assistant Programme and get some further information. Once all that is gathered, I can then get my statement written up in plenty of time before the hearing.

 

Clare;)

[paulgmb]

Hi again Clare,further to my PM, I've just been thinking some more about this and heres a couple more points to be considered;Has an investigation been carried out, were you notified of the investigation in writing and given reasonable notice. Who carried out the investigation, was it the manager who made the dismissal comment. Have you had a letter inviting you to the disciplinary hearing (with all the relevent I mentioned before) and does it state on their that dismissal might be a sanction.Who will carry out the disciplinary. It should be someone more senior than the investigating officer who will present the case.Your colleague who will accompany you is allowed to speak but not answer questions on your behalf.If any of the above doesn't or hasn't happened then I would raise it at the beginning of the hearing. Ask your colleague to make notes of their responses and also quiz the minute taker for management whether s/he has 'got that down.'I hope all this is useful. Sorry its a bit of a ramble. If I think of anything else I'll post again.The very best of luck.Best wishes,Paul