Advice needed urgently re disciplinary

hendec

Hi

I have been invited to attend a disciplinary hearing at work for my ''current level of unacceptable attendance'' basically I have been signed off long term sick, however, the letter states that the allegations lead to misconduct, my understanding is that if I am signed off work by a doctor for a legitimate reason then i cannot be disciplined for it, nor is it classed as misconduct, at a meeting last week my boss and HR hinted that it would be better if i resigned that way it would not go against me, the short of it is, we are leaving the area as my husband is relocating but we have not sold the house yet and it could take some time, what they expected was for me to just say ok, i'll resign and go away quietly, however, I feel that they are forcing me to respond now as they have used the terms disciplinary and mis conduct.......any advice would be greatly accepted.............

yours... worried

staffie1

Yes if you are signed off by a doctor you cannot be disciplined. They could offer to pay you off as not fit for work full stop, but can't see how they can sack you for it.
If it was me I'd probably let them do their worse then take them to a tribunal for unfair dismissal. Read up on the relevant employment laws.

Bobl

I am not an expert, but I understand you can be sacked for being long term sick. The job needs to be done and you may be incapable of doing it, the disciplinary will consider the facts. If you are not fit enough to return to work in the short term, then they may have to recruit someone else.

When do you think you will return to work?

staffie1

Bobl wrote: »

I am not an expert, but I understand you can be sacked for being long term sick. The job needs to be done and you may be incapable of doing it, the disciplinary will consider the facts. If you are not fit enough to return to work in the short term, then they may have to recruit someone else.

When do you think you will return to work?

Agreed, the employer can remove you, but they can't sack you on the grounds of misconduct.

GotToChange

Is the period of sickness finite?
Do you have an estimated return to work date?
Have you kept your employer in the loop?
Do they have Occupational Health within the organisation/outsourced? and
Has Occ Health/you employer been in regular contact with you (without harrassing) and/or a plan made for your return? (Because if they haven't chances are they will dismiss you on grounds of capability as they quite frankly couldn't give a monkeys about you or your welfare....)
Are your responsibilities being covered by someone?

Having said all that - whatever their grounds for calling this meeting, there are procedures that they should follow and of which you should be aware (do you have a copy of the company handbook and your own T&Cs and contract?) - typically any disciplinary meeting should be part of a three-stage process and you should have pleny of warning and be advised that you have the right to be accompanied by a colleague or Union rep.

In this case, I would think that they will be looking to dismiss you on the grounds of your capability; it isn't technically misconduct and I hate the use of that word inappropriately. If you are going to rely on them for a reference, make it a "condition" of your going quietly that they don't use the word misconduct and your name/employment with them in the same sentence or even document.

ACAS, CAB, Community Legal Service, your Union (if you are in one), local Solicitor on fixed fee initial interview and certainly this forum will all be able to offer you more definitive advice than I but this is my two cents worth.

I would also add though that it would help if you know for sure that you haven't been ever so slightly maybe (????) drawing things out awaiting your house sale/hubby's new job and relocation.

Good luck.
x

dmg24

staffie1 wrote: »

Yes if you are signed off by a doctor you cannot be disciplined. They could offer to pay you off as not fit for work full stop, but can't see how they can sack you for it.
If it was me I'd probably let them do their worse then take them to a tribunal for unfair dismissal. Read up on the relevant employment laws.

If it was me I would be ignoring anything you say! :rolleyes:

OP, it is possible to be disciplined whilst signed off work, and this may ultimately lead to dismissal on capability grounds (although this would be unlikely at the first stage of the process).

The employer may offer you a compromise agreement in order to leave now, which is likely to include a small financial inducement. You may also be able to agree the content of your reference as part of this process.

hendec

I do not disagree that the company needs to take some action re my sickness, and if they want to dismiss me on the grounds of capability then I accept that, however, long term sick does not amount to disciplinary or misconduct, I already told them I would rather resign than go through that but they changed everything when they put in writing to me that I am guilty of misconduct, ACAS have advised that I if I resign I could have a case for constructive dismissal and if I dont resign and they dismiss me for misconduct then I also have a case for unfair dismissal, the point is, I dont want any of that, I told them I'd go quietly, I also told them my husband was away on business and I needed to discuss it with him, and 3 days later I get the letter from them....I feel that they have turned this around... I have asked for a retraction of the letter and advised them I will not be attending the meeting as it is inappropriate....waiting for a response.........

zzzLazyDaisy

OP how long have you worked for this company?

Are you currently in receipt of company sick pay (if there is a contractual sick pay scheme in place and you are still receiving benefit from it, then a dismissal may amount to a breach of your contractual rights)

Also - if you don't mind divulging this on a public forum - what is the nature of your illness (the reason for this question is that some illnesses amount to a 'disability' within the law, and the employer has a higher duty to take steps to help you to remain in employment)

Having said all that, it seems from what you say, that you do not object to your employment being terminated, but rather you object to the suggestion that your dismissal might be labelled 'misconduct'? If that is your real concern, then it should be possible to come to an amicable agreement with the employer to end your employment on agreed terms - this may involve a compromise agreement.

EDIT: just to say that the advice given in the earlier post that you cannot be dismissed for being on sick leave and/or for being off sick is not correct. Employers can and do dismiss people who are unable to work owing to ill-health. Depending on how long you have worked for them, and whether you are covered by DDA, they will need to follow procedures and investigate when or if you are likely to return to work. But the bottom line is, yes, you can be dismissed while on sick leave, although the reason would be capability rather than misconduct.

dmg24

It sounds to me like the letter is badly phrased, it is probably just a standard letter that they send out for disciplinaries, but that does not amount to constructive dismissal. Can you tell us exactly what the letter states?

cazziebo

staffie1 wrote: »

Yes if you are signed off by a doctor you cannot be disciplined. They could offer to pay you off as not fit for work full stop, but can't see how they can sack you for it.
If it was me I'd probably let them do their worse then take them to a tribunal for unfair dismissal. Read up on the relevant employment laws.

Nonsense. you can be disciplined for breaching the company's attendance policy and attendance may be classed as conduct. By following the correct procedures then unacceptable attendance may lead to dismissal. The Disability Discrimination Act provides some employment protection where appropriate, but even the DDA can not prevent dismissal ultimately.

I wish people would stop perpetuating the myths that

1. You can't be fired if you have a doctor's note
2. You can't be fired due to sick leave.

Yes you can and it is happening more and more frequently.

hendec

I have worked for the company 2 years in Oct, again, I do not object to them wanting to manage me out, I have already been sent to occupational health, I dont want to go in to too much detail but at present I am signed off with Wait for it....Tennis elbow, golfers elbow and tedinitis (not sure i've spelt that correctly) my job entails constant typing whilst talking to customers, i have had physio, cortisone injections and accupuncture but the typing just aggrivates it, the doc has told me to give the job up.... which I was happy to do, but as lazydazy said, I do not want any disciplinary/misconduct on my file...will wait to see what their response is now i've asked for a retraction.....