Verbal Warning

[zoltron]

Hi all just a quickie and I will keep it short.

 

My brother has worked for his employer for 9 years the first 8 years he held a perfect employment record in relation to illness and punctuality. Howver the last year he has had problems with his diabetes and a few emergency issues at home.

 

His medication for his diabetes has recenltly been changed and as a result needs more careful monitoring at his GP and he needs to go for extra follow up treatment, however his employer have made changes to his contract under the DDA so he can attend these.

 

However 8 months ago he took 1 day off to care for his wife as she suffered a fall while shopping which required a hospital visit due to a broken arm. However it is the most recent issues 2 months ago which have caused the problem. His 6 year old daughter was hit over the head with a PE bag at school and was knocked unconcious which he took 2 days off to be with her in hospital and while his daughter was in hospital receiving treatment his wife was rushed to hospital with a suspected heart attack which required a further 2 days off, the absences were for a consecutive 4 day period but were for 2 very seperate incidents.

 

Upon his return to work his was dragged into a back to work interview where he was given a verbal warning for taking time off for dependants, he said they were genuine emergencies and needed the time off but his employer stood firm and said they were looking at the bigger picture in relation to his previous time off.

 

He has since appealed their decision quoting some very powerful case law (RBoS v Harrison) but they upheld their decision stating that their actions were required to bring the matter to account also saying they could not understand why he wold challenge this anyway as the warning will be gone after 13 weeks. However my brother feels they have crossed the line as time off in a genuine emergency is allowed and I stand by him on this.

 

He feels now like taking the matter up with an ET as if they are allowed to get away with this they will continue to flout the law regarding time off for dependants as his employer dish these warnings out like cooked dinners and they go unchallenged.

 

What do you guys think.

[Sidewinder]

I agree entirely. Provided that these were genuine family emergencies and it took 2 days on each occasion to deal with the 'immediate' problem, then he has a legal entitlement to do so (although the time off can be unpaid). The right to take time off in such circumstances lasts for only so long as is necessary to deal with the immediate problem (childcare, arranging for other family members to take over care etc) so each circumstance will be different, and there is no 'one size fits all' solution - as can be witnessed by a thread near to this one from TheWakers. The Harrison case, whilst relevant, was more to do with the nature of the term 'unexpected' in respect of an event which required the employee to take time off, but your brother's case was more clear cut as both events were truly 'unexpected' in that they occurred without being able to give prior notice of the need to take time off. The employer can perhaps argue that your brother, whilst he may have required the permitted time off to attend to the immediate incident and arrange ongoing care for his daughter did not need to take two days off to do this, and similarly for his wife being taken ill unexpectedly, but when taken together I find it hard to understand that any reasonable employer would choose to split hairs over this. Your brother would easily be able to prove that the time off was necessary in the circumstances.

 

What is absolutely unfair, however, is to lump this absence alongside any which is a consequence of a disability as recognised by the DDA. Measurement of absence under the DDA should not be put against other causes of absence for the purposes of disciplinary action or performance measurement as this would give a false picture and is potentially unfair when compared with the treatment of absence on the part of other non-disabled staff.

 

From the limited amount of information available, I do think that he has adequate grounds to push the point with the employer. Time off to cope with family emergencies is a legal right, and if the employer is to discipline your brother for this, then he needs to know the written grounds for refusing him permission to take that time. He also needs to find out on what grounds the employer believes it fair to include time off for medical appointments, for a condition already agreed by the employer as being a disability in respect of the DDA, to be accumulated alongside other time off in order to trigger disciplinary action as this suggests that he has been the subject of detrimental treatment.

 

Tribunal action is a drastic step, and although I feel that there is a good case to be made, the pros and cons need to be carefully weighed up and I would always advise qualified legal advice before doing so.

[mariefab]

1. When his daughter was knocked unconcious, did your brother inform his employer why he would be absent and when he expected to return to work?

a) Did his employer refuse or consent to this at the time?

 

2. Did he again inform his employer why he would be absent and when he expected to return 2 days later when his wife had a suspected heart attack?

a) Did his employer refuse or consent at that time?

 

3. On either of these occasions, did his employer state before he returned to work that his absence was considered to be unautorised?

 

4. Does he have his employers response to his appeal in writing? (If not, I suggest that this is requested before proceeding.)

 

5. his employer stood firm and said they were looking at the bigger picture in relation to his previous time off.

a) Is this 'previous time off' sick leave due to his diabetes?

b) Or, the agreed 'reasonable adjustment' of the contract change for follow-up treatment?

c) Or, the 1 day off 8 months ago?

d) Or, something else?

[zoltron]

1. When his daughter was knocked unconcious, did your brother inform his employer why he would be absent and when he expected to return to work?

 

He told his employer there had been an incident at his daughters school and as his wife did not drive, he needed to collect his wife then go to the hospital, upon arrival to the hospital his daughters injuries were more severe than first thought which required several nights in hospital, as well as arranging care for his elder 10yr old son.

 

a) Did his employer refuse or consent to this at the time?

 

His employer didn't disallow the time to be taken off they just said they would deal with the matter upon his return.

 

2. Did he again inform his employer why he would be absent and when he expected to return 2 days later when his wife had a suspected heart attack?

 

His daughter was admitted to hospital on the Thursday morning and discharged on the Saturday evening (2 Days absence in total). He went into work on the Monday morning only to be called away from work by his mother so his employer were aware his wife had been rushed in to hospital with chest pain as it was the personnel department who informed him of his wifes illness. The hospital decided to keep his wife in for observations and further tests which included an Exercise Tollerance Test, she was discharged on the Wedneday although my brother returned to work on the Wednesday for his usual shift as arrangements had to be made on the Tuesday for his children his son went to school but his daughter remained at home recovering from her injuries.

 

a) Did his employer refuse or consent at that time?

 

His employer didn't disallow the time but said again they would deal with the matter upon his return.

 

3. On either of these occasions, did his employer state before he returned to work that his absence was considered to be unautorised?

 

His employer never told him the absence would be treated as unauthorised, but did state they would deal with the matter upon his return.

4. Does he have his employers response to his appeal in writing? (If not, I suggest that this is requested before proceeding.)

 

He has the appeal in writing along with the minutes taken from the meeting, they have stated in the letter their decision is final.

 

5

. his employer stood firm and said they were looking at the bigger picture

in relation to his previous time off

.

a) Is this 'previous time off' sick leave due to his diabetes?

 

Yes

 

b) Or, the agreed 'reasonable adjustment' of the contract change for follow-up treatment?

 

Yes, a non disabled employee is allowed an absence rate of 3%, the change in his contract due to his diabetes was upped to 8% but was to include illness, time for appointments & matters such as time off for dependants as it appears the matter of time off for dependants has took him over the 8% threshold.

 

c) Or, the 1 day off 8 months ago?

 

The matter with his wife breaking her arm would have been included in his absence rate so it would have been included as absence is monitored over a rolling 26 week period.

 

d) Or, something else?

 

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Sidewinder thanks for your comments, believe me when I say he has pushed this matter very hard over the last two weeks and its now got to this stage where his employer won't budge on their stance even though they are clearly in the wrong, hence in reply to mariefab he got a letter from them giving their decision.

 

Something has to be done as they have clearly broke employment law plain and simple, he did speak to someone at his union who very much said the same they they had broke a very powerful piece of employment law and as a result arranged for one of their panel of solicitors to have a chat over the phone with my brother who also agreed his employer was very much in the wrong.

 

My brother thinks now the only way to sort this matter out now is to seek redress at an Employment Tribunal, as drastic as it sounds mt brother has done all he can and has given enough opportunity to sort the matter out inernally as detailed in all the minutes of previous meetings. He has them by the short and curlys yet they refuse to relent he or I just don't understand how they can refuse to see this.

[mariefab]

Yes, a non disabled employee is allowed an absence rate of 3%, the change in his contract due to his diabetes was upped to 8% but was to include illness, time for appointments

OK, so far so good.

This contractual change is good practice by an employer and a fairly commonplace step that an employer may take as a 'reasonable adjustment' (section 6 of the Act) for an employee with a disability protected by the DDA.

 

& matters such as time off for dependants as it appears the matter of time off for dependants has took him over the 8% threshold.

Was the inclusion of time off for dependants in the absence rate expressly written into the above contractual change?

If so, he may have another head of claim.

 

Time off for dependants is a statutory right.

There is no restriction on the number of times that this right can be legitimately exercised by an employee, as long as the employee complies with the conditions in 57A of the ERA 1996.

It should not therefore be included in an absence rate which could lead to disciplinary (detriment) measures.

Otherwise every woman who ever took maternity leave (statutory right) could potentially be dismissed for excessive absence.

 

There's a possibility that his employer's action could also be a breach of the DDA if they've included any absences due to his statutory right to time off for dependants into a reasonable adjustment for his disability.

[zoltron]

Was the inclusion of time off for dependants in the absence rate expressly written into the above contractual change?

If so, he may have another head of claim.

 

Thanks for getting back to me mariefab, the answer to your question was no, the time off for dependants was not written into his new contract, the only ammendment which we can see is an ammendment increasing the nominal 3% to 8%, there is nothing that stands out stating that time off for dependants would be included in his absence rate. However it purely seems the disciplinary was brought about because time off was taken to care for dependants on two consecutive occasions.

[mariefab]

OK. Just to be clear;

If he does not count any of the periods of time off for dependants would his absence rate be less than 8%?

Does any of the documentation from his employer thoughout this disciplinary process refer to his sickness leave?

[honeybee13]

Hello there. What a dreadful case and your poor brother and his family. They're lucky to have you helping them.

 

I just wanted to mention ACAS and their confidential helpline if your brother [or yourself] wants someone else to talk to. The number's on their website. The other people are the EHRC, equality and human rights commission and I think I'm right in saying they also have a helpline.

 

I hope we can help your brother achieve justice in this.

 

HB

[mariefab]

I would definitely second Sidewinder's suggestion to take legal advice. Not least because if there is a case to be made of disability discrimination the potential for compensation is higher.

 

Also, as honeybee rightly says ACAS- 08457 47 47 47 and EHRC- 0845 604 6610 may also help.

 

For the purpose of initiating a ET claim, I believe that the last date on which he could to submit a claim would be 3 months less 1 day from the date on which he received the verbal warning (detriment).

 

I can't find much in the way of case law on this subject.

 

http://www.bailii.org/uk/cases/UKEAT/2004/0295_04_0111.html

 

http://www.bailii.org/uk/cases/UKEAT/2003/884_01_1401.html

 

[zoltron]

OK. Just to be clear;

If he does not count any of the periods of time off for dependants would his absence rate be less than 8%?

Does any of the documentation from his employer thoughout this disciplinary process refer to his sickness leave?

 

 

His absence rate would be 6.8% if the time off for dependants were removed as he did ask for a figure for the 5 days relating to time off for dependants (1 day and the 2 + 2 days of recent). However now it stands at just under 10% with everything included.

 

The notes from the previous meetings states the bigger picture was being looked at so although they are being a bit evasive when you take a snapshot and do the maths everything has been included.

Edited August 14, 2010 by zoltron

[zoltron]

Hello there. What a dreadful case and your poor brother and his family. They're lucky to have you helping them.

 

I just wanted to mention ACAS and their confidential helpline if your brother [or yourself] wants someone else to talk to. The number's on their website. The other people are the EHRC, equality and human rights commission and I think I'm right in saying they also have a helpline.

 

I hope we can help your brother achieve justice in this.

 

HB

 

Thanks HB the way my brothers employer have treated him is vile, and to say "I don't see what you are complaining about as the verbal will be gone in 13 weeks" is just out of order, he shouldn't have been given it in the first place god only knows what they are going to do to him when he has to go for one of his check ups in 2 weeks at the hospital because his absence rate isn't going to drop below the threshold and they will launch another absence review. Looks like he will have to book it as holiday just so he isn't penalised further.

 

I wish I could name and shame these morons, all I will say is his employer are well known in the UK and hope when justice is achived they will be named and shamed for their failures.

[mariefab]

Well unless they can show that the incidents with his daughter and wife did not occur or that he failed to comply with 57A(2) he should win an ET case brought under 47C(2)(d) of the Act.

 

With the below in mind perhaps he should submit this claim now.

　god only knows what they are going to do to him when he has to go for one of his check ups in 2 weeks at the hospital because his absence rate isn't going to drop below the threshold and they will launch another absence review

　

The last ET claim I was involved with was submitted on 1st July and received by the Respondents on 6th July. So, they may receive it in time to make them think twice about taking further action.

 

He could submit a seperate claim later, if appropriate after taking further advice, for disability discrimination as long as he keeps within the original time limit.

[zoltron]

Just to update you all who have replied, my brother and me have been working hard over the weekend to get the ET forms filled in. My brother sent them off this morning so should get something from the tribunal shortly.

 

In the mean time is there anything what can be done in preparation other then filing stuff away ready to bundle up? We did think about contacting the tribunals service to see if we can go along and watch a similar hearing in progress just so we can get the feel of actually being at a hearing.

[honeybee13]

Hi there. You can go to a tribunal and we often suggest that people should, so they know what to expect.

 

HB