Duty of care at work

[thejamman]

I have just received a first stage warning under my company's sickness/absence policy. I have been absent on three occassions, that is correct. But one of those occassions was when I had to enter hospital for an operation to remove my thyroid gland which had a suspected cancerous growth, biopsy's proved inconclusive. Surely using this period of absence to facilitate this warning means the company are not showing me the duty of care that they are legally obliged to do. What did they expect me to do...wait until February to have this potentially life threatening operation. I am obviously going to appeal this disciplinary measure. Is duty of care the best direction to go.

Thanks in advance of any replies.

[Conniff]

This isn't duty of care, the actual reason isn't the main concern, it's the time off.

[honeybee13]

Hello there.

 

How much time off sick have you taken altogether please?

 

My best, HB

[Sidewinder]

Agree with Conniff - this isn't about a duty of care - that would be more to do with protecting you from harm or distress caused by work or a situation at work - but is a matter of compassion.

 

What you are dissatisfied with is that the employer does not seem to have taken the nature of your absence or the stress and worry caused by your illness into consideration in deciding to discipline you for poor attendance.

 

You can of course appeal that a disciplinary sanction was a little harsh, and I have to agree that if the employer was aware of the circumstances that this does seem to be the case,but the problem with sickness and absence is that staff are often measured against a fixed line with little room to overlook a particular event.

 

Did you follow the company's rules for reporting the absence, the nature of the illness and back this up with appropriate sick (or fit) notes? Did you discuss the condition, the operation and the anxiety that it was causing before you needed the time off? Did you work for as long as possible before the operation or were you off sick before the surgery itself. I think that if you could demonstrate that you met the employer half way and did as much as possible to make up for the absence you could have grounds to complain that the warning was 'unreasonable' in the circumstances.

[assisted blonde]

I assume that you have hit a trigger point which is how many employers judge sickness, to some extent it dosnt matter why you were off its just that you were off sick, however a first stage sickness warning does not usually go any further than that it has been mentioned so its not likely to affect you unless you take more time off.

[thejamman]

Thanks for the replies:

Our trigger point is 3 occassions in a rolling twelve month period and my absences were for three days, 5 days and two weeks recuperation for the operation. My manager and HR department were kept informed fully that the operation was to remove a cancerous lump on my thyroid and obviously that I was very worried and could not have waited until I was not going to trigger the policy. They fully accepted that I needed to have the operation and at no stage did they warn me that if I had the operation I would be coming back to work facing my first disciplinary hearing in 20 years of working there. I understand that another employee was told that if they went and had their operation it wouldn't count as it was a pre-planned absence and the company could obviously organise themselves knowing in advance that he was to be absent. I gave them two months notice, surely that is enough.

[assisted blonde]

Seriously I wouldnt waste too much time worrying about a first stage sickness warning, seems a bit unfair as you had told them you would be off but as you have said it was a trigger point, you could send a letter to HR just saying that it was a preplanned absence and as such it seems wrong that you have a warning, but the warning will come off your record and unless you intend taking any more time off it shouldnt have any lasting consequenses

[thejamman]

There is a six month improvement notice with the first stage and who knows what happens in that time. If I am off even for one day then its onto the second stage. if there is a chance of getting it rescinded then it needs fighting. As far as Im concerned they have set a presedence with allowing someone else to have their operation for a cosmetic reason but denied mine for a cancerous lump.

[becky2585]

Is it actually cancerous, though? If so then you would be disabled and have extra protection.

[thejamman]

I will not know until tomorrow, but thanks for asking. I am still anxious and extremely worried yet my employer still puts me under even more stress. Is it getting nearer to duty of care yet???

[postggj]

it will only be a duty of care if your medical condition would have an impact on your working day and if any reasonable adjustmants were warrantied

[assisted blonde]

Just a question you gave them 2 months notice that a suspected cancerous lump was going to be removed? Seems a long time for somthing that could be cancer? or am I missing somthing?

Also if it is cancer it would be counted as a disability and any absence through this would be treated differently

Edited November 26, 2012 by assisted blonde

[thejamman]

Well the good news is the lump was not cancerous. The reason it took so long was that the two biopsys were inconclusive. I have spoke to our MD today and he has said he was not happy with the way the absence hearing was conducted and he will have a look at it.

[assisted blonde]

Thats good, and very pleased it wasnt cancer

[billybobynumeroduo]

Hi Squaddie can you expand on this...how is an employer to assess whether claimants medical condition would have an impact on the working day and if the employer need carry out a full risk assessment.

 

if they failed to carry out a full risk assessment when they should have this would be a breach of duty of care. However upon when is it deemed necessary that an employer should carry out a risk assessment?

 

Regards

 

BB