disciplinary over sickness....

[J4g3d]

Just need a little bit of advice really, i have a disciplinary meeting soon for 'high sickness absence'

 

My employer has a strange sickness policy, it is a rolling year sickness that has no set start date?!?! So they pick and choose presumably what date my sickness started for that year.

 

I always thought it was january to december then i thought they changed it to april to april and now it seems its a random rolling year. So firstly, has anyone heard or had experience with this type of sickness?

 

I have been employed for 5 years with this employer and probably taking 10 days sick per year roughly. (8 days allowed). Up until this year ie..2013 in total i have been off about 27 days and at any 1 time 2 weeks.

 

Now, on 2 or 3 occasions i have doctors notes which 2 are physical injuries preventing me from coming to work and the other is work related stress with 4 days in between with other common sickness.

 

So i have been unlucky this year. 1 of my colleagues was off with stress for 6 months but they did not give him any formal disciplinary. Also another colleague was off for around 1 or 2 months without any disciplinary. But i have 27 days and i have a disciplinary.

 

So my question really is, can they take into account the days i have doctors notes? i have NOT had any written warning about it. Only a meeting with one of the managers who said i had taken 9 days in the last 2 months. He did not mention high levels of absence or anything before the last 2 months.

 

The formal meeting i have, they are taking into account from dec12 to nov13 which is 27 days.

 

I am very confused and stressed to the point i cannot even work anymore.

[Haven]

If your taking odd days off here and there without a doctors note then it will be treated differently to somebody who has been signed off long term by a doctor. You cant be disciplined for being off sick if a doctor has signed you off. Most employers have a set amount of days that they will consider acceptable for sickness and after that they will start to become unhappy. All because you can take 8 days sick each year doesn't mean you have too lol. You might just have to start sucking it up and going into work ill otherwise your going to find yourself having a lot of spare time.

[Emmzzi]

You cant be disciplined for being off sick if a doctor has signed you off.

 

That's not true.

 

Underlying sickness policy is the question "Is this person able to fulfill the terms of their contract of employment." It's not a check to see if you are lying - all illness is considered to be genuine.

 

At 10 days off every year (so about one a month) I would say no, and as an employer I would be looking to dismiss.

[Haven]

That's not true.

 

Underlying sickness policy is the question "Is this person able to fulfill the terms of their contract of employment." It's not a check to see if you are lying - all illness is considered to be genuine.

 

At 10 days off every year (so about one a month) I would say no, and as an employer I would be looking to dismiss.

 

True, if you where signed of sick for a long period of time then the company would have to look at in the way you have stated. But if the sick leave is average or slightly above average and has a doctors note then it would properly be looked at more sympathetically then someone not turning up for a few days each month. Working for a living is tough and sometimes you just have to roll out of bed no matter how crap you feel, otherwise your boss is going to get irritated. Employers want reliability and if you cant offer that they will look to replace you.

[Template0716]

The rolling year absence is not strange, it is often used.

If you are absent on 1 November, the employer will look back 12 months from 1 November to see the number of absence days. If you are absent on 20 November, the employer looks back 12 months from 20 November.

 

If the number of days absence goes beyond the trigger point to implement the procedure, the reasons for the absence should make no difference to starting the procedure, because the number of absence days are just that. The reasons for the absence are the mitigation in any meeting.

[Atlas01]

I don't see anything in your post that gives you any protection from a warning

 

where the accidents caused by work and not disputed?, otherwise fair game

 

just because your sick note says WR Stress unless the employer agrees (which they won't) without compelling evidence that is simply your gp putting your opinion on the sick note

 

you have a high enough level of absence to issue a warning

[J4g3d]

The rolling year absence is not strange, it is often used.

If you are absent on 1 November, the employer will look back 12 months from 1 November to see the number of absence days. If you are absent on 20 November, the employer looks back 12 months from 20 November.

 

If the number of days absence goes beyond the trigger point to implement the procedure, the reasons for the absence should make no difference to starting the procedure, because the number of absence days are just that. The reasons for the absence are the mitigation in any meeting.

 

My contract states 8 days sick within the each year. Does not state rolling, along with many other things that they have changed without telling their employees. Supposedly now it is a rolling year which works in the companies favour.

 

I can understand the rolling part in terms of them looking back 12 months. But in my case they have not looked back 12 months but have looked back 10 months. which 10 months exactly ago i had 2 days off. However 2 months prior to that (making it a full 12 months) i had zero days sick.

[J4g3d]

I don't see anything in your post that gives you any protection from a warning

 

where the accidents caused by work and not disputed?, otherwise fair game

 

just because your sick note says WR Stress unless the employer agrees (which they won't) without compelling evidence that is simply your gp putting your opinion on the sick note

 

you have a high enough level of absence to issue a warning

 

Agree, but what about my colleagues, 1 of them off for nearly 2 months and the other off for 6 months with WR stress? no warnings, no formals, no dismissals.

[Emmzzi]

The formal meeting i have, they are taking into account from dec12 to nov13 which is 27 days.

 

you appear to be contradicting yourself. Is it 27 or is it something else?

[Emmzzi]

Agree, but what about my colleagues, 1 of them off for nearly 2 months and the other off for 6 months with WR stress? no warnings, no formals, no dismissals.

 

single isolated incidents are more likely to get a sympathetic hearing than many odd days. Look up "Bradford index" for an explanation.

 

Also unless you work in HR how do you know for sure who is on a warning?

[J4g3d]

you appear to be contradicting yourself. Is it 27 or is it something else?

 

Sorry, let me get it right.

 

they are counting from 27th of december 2012 to 28th of october 2013 = 10 months i have had 27 days off. So if they calculated it for 12 months it also will be 27 days. But they have decided to calculate it as 10 months.

 

Regarding your other question. I do not need to work for HR to know if 2 of the other colleagues have had any warnings. Both of them are very very close friends in and out of the work place.

[Emmzzi]

on 27 days as several incidents I would totally expect to be on a warning. 10 months or 12, it matters not - it is way too high.

 

Take your vitamins and keep your head down for the next year.

[J4g3d]

on 27 days as several incidents I would totally expect to be on a warning. 10 months or 12, it matters not - it is way too high.

 

Take your vitamins and keep your head down for the next year.

 

The time i was off was

1 stress

2 pulled muscle

3 inflamed cartilage

 

All work related due to the type of work i do. Never had any of the above issues in my lifetime until this year. The remaining 5 days or so i had off work was common flu related problems.

 

It just seems i am victimized for my body breaking down to their demands in the work place. We are told to do jobs that require more than 1 person to do the jobs..etc.

 

Other colleagues had the same/similar problems but again no warnings. 1 of them returned to work and they had a meeting to see how fit he was to work. With me i return to work to be forced into a formal meeting. No questions to ask about my health.

[Haven]

'It just seems i am victimized for my body breaking down to their demands in the work place. We are told to do jobs that require more than 1 person to do the jobs..etc'

 

That is a different issue and if you feel your health is being put at risk because of the job you do then it is a health and safety issue.

[Emmzzi]

agreed, talk to your H&S rep.

 

but your sickness is still too high! You seem to be incapable of recognising that?

[Ell-enn]

To be honest I would have had your absence investigated before now given the amount of days sick you have had. While illness may be genuine and unavoidable it doesn't mean the employer has to put up with it and a doctor's note is not an insurance against disciplinary action.

[Atlas01]

The time i was off was

1 stress

2 pulled muscle

3 inflamed cartilage

 

All work related due to the type of work i do. Never had any of the above issues in my lifetime until this year. The remaining 5 days or so i had off work was common flu related problems.

Well that is a good start but does/will your employer accept this, did you state this in any return to work interview (if you have them) or inform them previously to the invite that you attribute the injuries to work, they will use any of these missing parts of the jigsaw against you, they are reasonable expectations.

 

It just seems i am victimized for my body breaking down to their demands in the work place. We are told to do jobs that require more than 1 person to do the jobs..etc.

is it in black and white?, if so make sure you supply them with this information before your hearing

 

 

Other colleagues had the same/similar problems but again no warnings. 1 of them returned to work and they had a meeting to see how fit he was to work. With me i return to work to be forced into a formal meeting. No questions to ask about my health.

always a fair point to make and nearly always met with HR/Manager saying "we assess each case on its own merits", therefore unless your employer is aware that this is in fact true and can be evidenced they usually railroad through this line of defence and shut you down with that answer

 

 

a couple of other things

 

1. your sickness record this year is not good, often the flu/cold/felt like crap days off can be the extra weight to issue the warning, last year is a good response as in no days off but strangely enough employers like to disregard the last sickness year unless it has days that support their side

 

2. I'm not accusing you of this but many schemes that say x days off quite often mean employees think i'm safe for 5/6/7 days so i might as well have them. My employer has some range in this area but personally i have taken it upon myself to ignore their guidance in work off a 0 days off rule, it is much safer for me that way.

 

3. I find that for the "internal" warnings pre dismissal employers are more open to a lower level of consistency and reasons for days off than a final hearing where they know there is much greater chance of an ET1 coming their way so are by the book.

 

All they are actually doing is warning you that failure to fulfil your contract by turning up to work due to sickness may result in your dismissal if it continues and you cannot give regular and sustained attendance. It's a warning not a dismissal (unless i missed that bit)

[J4g3d]

My employer gave me a 2 day notice for a formal meeting and refused me point blank to take any of my colleagues with me.

 

I asked my union but they said its too short notice.

 

They rearranged for 5 days later, however still they refuse to allow me to take a colleague and i spoke to the union rep and he refused to come with me saying that it will be ok and he doesnt normally come to meetings like this as its apparently straight forward and clear cut.

 

Not only has this dashed my hopes but i really do not need to go to a meeting with 3 management and HR. i pay for a union service and i am rarely getting any kind of service. I rather take a work colleague.

 

What can i do in this situation? ask to reschedule when they have a free colleague?

[renegadeimp]

Was it investigatory or a disciplinary? The former, you have no right to a witness, the latter you do.

 

In a disciplinary, you are fully entitled to a witness of your choosing. If they are not able to attend, you can postpone the meeting for a max of 5 days to allow your witness/rep to attend. You must be able to provide proof they cant attend.

 

They cannot refuse to allow you to have a rep if it is a disciplinary meeting, but they can continue with the meeting if it seems as if you are stalling for time.

[J4g3d]

Was it investigatory or a disciplinary? The former, you have no right to a witness, the latter you do.

 

In a disciplinary, you are fully entitled to a witness of your choosing. If they are not able to attend, you can postpone the meeting for a max of 5 days to allow your witness/rep to attend. You must be able to provide proof they cant attend.

 

They cannot refuse to allow you to have a rep if it is a disciplinary meeting, but they can continue with the meeting if it seems as if you are stalling for time.

 

Hello, as its been delayed for 5 days would that mean I have no choice but to attend without being allowed to postpone? It is a disciplinary meeting.

[renegadeimp]

If its a disciplinary meeting, you are legally entitled to a witness of your choosing. They are not allowed to refuse you one.

 

What is the reason for the 5 day postponement? YOU can postpone it for 5 days to allow your representative to attend, but you must have good reason to do so, such as a union rep who is with another member during that time. Remember, as far as everyone is concerned, you could have used the current postponement to find a rep.

 

Do you have a union rep in your workplace that can stand in for you? They dont need a few days notice. Infact, when i was a rep, we regularly sat in at a few hours notice.

[J4g3d]

If its a disciplinary meeting, you are legally entitled to a witness of your choosing. They are not allowed to refuse you one.

 

What is the reason for the 5 day postponement? YOU can postpone it for 5 days to allow your representative to attend, but you must have good reason to do so, such as a union rep who is with another member during that time. Remember, as far as everyone is concerned, you could have used the current postponement to find a rep.

 

Do you have a union rep in your workplace that can stand in for you? They dont need a few days notice. Infact, when i was a rep, we regularly sat in at a few hours notice.

 

 

Yes it is a disciplinary meeting and the company are not part of any union. As i say the meeting was for last week which they gave me 2 days notice to get a witness but refused to allow me to take a work colleague, i called my union and they said he cannot make it due to short notice.

 

So i told my employer who rescheduled 5 days later. I got hold of my rep 3 days before the meeting (monday) and he said he dont come to formal meetings regarding the issue i have, he said its straight forward and even if he did come there is nothing that he can do. But he doesnt seem to understand the point that i pay for there services and i am not receiving any services. On top of the point that i would feel more comfortable with a neutral witness for that fact that this employer is known to go off subject amongst other things when you do not take a witness.

 

So to sum up up..

 

1. employer refuse to allow me to take a work colleague

2. union refuse to attend with me

3. employer refuse to reschedule the meeting.

 

I am stuck to go on my own...

[Emmzzi]

show them this web page. They must allow you to take a colleague as a witness (just a witness, not a cross examiner!)

 

https://www.gov.uk/disciplinary-procedures-and-action-at-work/disciplinary-hearings

You have the right to take someone with you to a disciplinary hearing, but you must tell your employer about this first.

 

Your companion can be either:

 

• a colleague
  
• a trade union representative
  
• a trade union official
  

[renegadeimp]

If the employer still goes ahead with the disciplinary, and refuses to allow you a witness/representative, you may be able to call the entire procedure into question.

[Atlas01]

i think you guys are missing something here

 

it is not a witness from what i see it is a rep or collegue

 

the employer is legally bound to allow TU representation which the OP has asked for, they did

 

his issue is between him and the TU, the employer has fulfilled their part of their bargain, the employer needs not worry nor care the union has chosen not to attend with 5 days notice which is ample in law, witnesses are also able to refuse to attend in employment, only a tribunal can compel them to give evidence

 

i see the employer winning here on a technicality

 

why the union did not do what they have paid for is the real issue here, my best advice for J4 is ring his regional union office, explain he is in a disciplinary hearing which his rep has refused to attend for reason (x,y,z) and be clear he will be seeking independent legal advice if he is dismissed in regard to his unions actions, he won't have a claim but they will get off their posteriors!