Advice needed urgently re disciplinary

zzzLazyDaisy

Is the company big enough for them to consider relocating you to a different position that doesn't involve typing - maybe filing/admin, for example.

Perhaps not, and maybe you wouldn't want it anyway - but it is worth considering whether there is any alternative to terminating your employment with the company.

Also you might want to check if resigning might have any affect on your entitlement to benefits (I don't know the answer to this, but someone will). If there might be a potential problem, it might be better to have the company terminate your employment on the grounds of long term ill-health, rather than resigning?

Uncertain

cazziebo wrote: »

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.

Whilst I agree with almost all you have said this is capability not conduct. If you are unable to work due to illness (normally certified by a Doctor) then it is not misconduct. Yes, you can be dismissed on the grounds of capability - providing the correct steps are followed. However, if this is treated as misconduct the OP should go straight to a tribunal.

SomeBozo

As dmg says, you can be sacked while off sick. Ignore any advice that says you can't be sacked, this advice is wrong. A doctors note does not protect you from this.

The sacking would be on the basis of "capability", that is, as you are not at work because you are sick, you are therefore "incapable" of doing your job as you are not there.

Capability is part of the diciplinary procedures.

There is a procedure to follow before they sack you (which gets more complicated if your illness is covered under the DDA), but they can.

Bozo

hendec

Thanks guys, I appreciate the feedback but all I want them to do is retract the letter so theres nothing on my file re misconduct, the doc has advised me to give the job up so I called the benefits agency and they dont ''think'' i'll have a problem claiming benefits if the doc has advised me to give it up, I suspect they wont retract the letter, we have already discussed alternative roles as doc requested i be put on restricted duties to see how I got on, as I said before, they know I'm moving area so they just want rid of me...I just want it to happen quietly so it does not affect any future jobs.......heres hoping....

dmg24

It is possible that they would retract the current letter and replace it with one that simply refers to disciplinary action. Is that really any better?

cazziebo

Uncertain wrote: »

Whilst I agree with almost all you have said this is capability not conduct. If you are unable to work due to illness (normally certified by a Doctor) then it is not misconduct. Yes, you can be dismissed on the grounds of capability - providing the correct steps are followed. However, if this is treated as misconduct the OP should go straight to a tribunal.

Sorry I should have been more specific! Absence can be misconduct, long term absence, or sustained absence due to a condition, may be capability. (ie frequent mondays/fridays off for different "reasons" can lead to disciplinary for misconduct, The person isn't necessarily incapable of working)

I have to say I have taken people through the disciplinary process for misconduct due to breaching absence policy when some/all of the absence has been certified. It's not for me to judge whether someone is "genuinely sick" - I can only assess absence.

zzzLazyDaisy

cazziebo wrote: »

Sorry I should have been more specific! Absence can be misconduct, long term absence, or sustained absence due to a condition, may be capability. (ie frequent mondays/fridays off for different "reasons" can lead to disciplinary for misconduct, The person isn't necessarily incapable of working)

But in this case OP has said that she is off work on long term sick leave, on her doctor's advice, with a recognised health condition that is preventing from being able to do her job (RSI - she is a typist)

In those set of circumstances, while the employee may well be at risk of dismissal on the grounds of [in]capability, one would not normally expect the employer to view the absence as misconduct.

Uncertain

cazziebo wrote: »

I have to say I have taken people through the disciplinary process for misconduct due to breaching absence policy when some/all of the absence has been certified. It's not for me to judge whether someone is "genuinely sick" - I can only assess absence.

Then I'm amazed you have got away with it. As you say, it is not for you to judge if someone is "genuinely sick". If a Doctor has certified them as sick, then you must treat them as "genuinely sick".

Long term, providing you do it properly, you can go through the capability procedure. To treat it as misconduct suggests that they are not sick and leaves you wide open to a claim for constructive dismissal. It is probably also defamatory both to the staff member and their Doctor!

ceridwen

hendec wrote: »

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.....

Ahhh....that throws a bit of a different light on things. The particular illness you have - is it Repetitive Strain Injury in actual fact? Anyone would wonder - given the combination of those illnesses and the type of job you do. They will certainly be wondering - and wondering, from that, if you might bring a claim against them for it.

ceridwen

zzzLazyDaisy wrote: »

Also you might want to check if resigning might have any affect on your entitlement to benefits (I don't know the answer to this, but someone will). If there might be a potential problem, it might be better to have the company terminate your employment on the grounds of long term ill-health, rather than resigning?

I believe there would be some disqualification from receiving benefits on the grounds of having resigned. So wait to be pushed - rather than jump - unless, of course, you wouldnt be eligible for benefits anyway (maybe your N.I. record might not be adequate to get that 6 months worth of non means-tested benefits you would be eligible for even as a married person).