Advice Please- Employment Law.

KayJ066

Jeff_Bridges_hair wrote: »

Yes i understand that - but that does not really stop a company from taking a stand..

Agreed, But there is a difference in taking a stand and using different rules for different people which they have done.

I know of at least 5 people that have had 2 or even 3 graces after being on a Final Written warning at the place where my sister works.
It's not fair at all.

williacg

Sorry to hear that your sister was dismissed, but in what way could her situation be classified as unfair dismissal? she received 2 prior warnings relating to her absences, which did not improve. The union had access to her colleagues' sick records, was there a vast difference in comparison? What have her union advised, and was it mentioned in the meeting that colleagues on their FWW for the same thing had received grace?

KayJ066

williacg wrote: »

Sorry to hear that your sister was dismissed, but in what way could her situation be classified as unfair dismissal? she received 2 prior warnings relating to her absences, which did not improve. The union had access to her colleagues' sick records, was there a vast difference in comparison? What have her union advised, and was it mentioned in the meeting that colleagues on their FWW for the same thing had received grace?

I'm not sure as I haven't spoken to her yet, she is going to call me when she gets home.

I know that another employee that works there has recieved 3 FWW all for absence and been given a grace after each one and is still employed.

zzzLazyDaisy

KayJ066 wrote: »

Just had a call from my sister, they have dismissed her. Any advice on what she can do now? There is an appeal procedure, but is there a case for unfair dismissal?

The first step is for her to lodge her appeal. She should refer to the disciplinary procedures for the procedure, but they will probably say something along the following lines.

'If you wish to appeal you should do so in within [x] days of receiving written notification of dismissal. Your appeal should be in writing, addressed to [name] and should state your grounds of appeal'

The letter confirming her dismissal should also advise her of her right of appeal, and how she should go about it.

Her ground of appeal should focus on any areas where the capability procedures have not been applied correctly, or fairly. If she knows the names of people in a similar situation to her, who were not dismissed, she should name those people and state that she feels that the disciplinary procedures have not been fairly applied because of the inconsistent treatment between her own case and the way her colleagues were treated.

BUT (and this is a big but) there may be perfectly fair reasons for treating the other employees differently - for example they may have underlying health problems which account for the absences. There may also be a number of people who, like your sister, were not given a period of grace after a FWW.

If her appeal is unsuccessful, then she may wish to consider a claim for unfair dismissal, but the basic facts are that there is a fair reason for dismissal (capability) so she will have to be able to show that there was procedural unfairness in the way the capability procedures were applied.

She has three months from the actual date of dismissal (NOT the date of appeal) to make a claim - starting from the dismissal date count three calendar months forward and one day back.

It isn't possible for anyone here to give you any advice on whether such a claim would be successful as we don't have access to the full facts (the dismissal letter, when it arrives, may provide more information) but IF the procedures have been applied correctly and fairly, then the dismissal will also be held to be fair.

hope this helps

williacg

KayJ066 wrote: »

I'm not sure as I haven't spoken to her yet, she is going to call me when she gets home.

I know that another employee that works there has recieved 3 FWW all for absence and been given a grace after each one and is still employed.

Well at least she has you and the union supporting her, and if her colleagues are happy to come forward and confirm they were treated differently, hopefully that helps.

I hope all goes well

Jeff_Bridges_hair

yeh ill echo what zzzLazyDaisy has said really.. Appeal straight away.. But do remember that what has gone on in the past may not have any bearing on how the company now treat absence..

But good luck with it all and let us know how she gets on

KayJ066

zzzLazyDaisy wrote: »

The first step is for her to lodge her appeal. She should refer to the disciplinary procedures for the procedure, but they will probably say something along the following lines.

'If you wish to appeal you should do so in within [x] days of receiving written notification of dismissal. Your appeal should be in writing, addressed to [name] and should state your grounds of appeal'

The letter confirming her dismissal should also advise her of her right of appeal, and how she should go about it.

Her ground of appeal should focus on any areas where the capability procedures have not been applied correctly, or fairly. If she knows the names of people in a similar situation to her, who were not dismissed, she should name those people and state that she feels that the disciplinary procedures have not been fairly applied because of the inconsistent treatment between her own case and the way her colleagues were treated.

BUT (and this is a big but) there may be perfectly fair reasons for treating the other employees differently - for example they may have underlying health problems which account for the absences. There may also be a number of people who, like your sister, were not given a period of grace after a FWW.

If her appeal is unsuccessful, then she may wish to consider a claim for unfair dismissal, but the basic facts are that there is a fair reason for dismissal (capability) so she will have to be able to show that there was procedural unfairness in the way the capability procedures were applied.

She has three months from the actual date of dismissal (NOT the date of appeal) to make a claim - starting from the dismissal date count three calendar months forward and one day back.

It isn't possible for anyone here to give you any advice on whether such a claim would be successful as we don't have access to the full facts (the dismissal letter, when it arrives, may provide more information) but IF the procedures have been applied correctly and fairly, then the dismissal will also be held to be fair.

hope this helps

Thanks so much, the letter will say if you want to appeal etc etc, she will have to write to the general manager within 5 days.

I know one person who works there at the moment who has had 3 FWW for absence and been given a grace each time.

dickydonkin

Jeff_Bridges_hair wrote: »

Not difficult at all.

You get them to manage their health.. And if it carries on then there is only one way and thats the door im afraid..

Which is fine - provided they are informed on how to 'manage their health' and they get appropriate professional medical advice - not threats from HR or management which could add stress to the list of ailments.

I wonder how many SME's offer persistent absentees advice on how to 'manage their health' or do they just take the easy option of 'showing them the door' when they are suffering recurring ilnesses without even offfering occupational or general 'health management'

As I alluded to earlier, it is a difficult situation for both parties and I can sympathise with the OP's sister - particularly when the reason for leaving her job may be asked by a future employer.

Googlewhacker

dpassmore wrote: »

Which is fine - provided they are informed on how to 'manage their health' and they get appropriate professional medical advice - not threats from HR or management which could add stress to the list of ailments.

I wonder how many SME's offer persistent absentees advice on how to 'manage their health' or do they just take the easy option of 'showing them the door' when they are suffering recurring ilnesses without even offfering occupational or general 'health management'

As I alluded to earlier, it is a difficult situation for both parties and I can sympathise with the OP's sister - particularly when the reason for leaving her job may be asked by a future employer.

Sorry but the companies are not there to pander to the employee, the employee knows if they have persistant illness problems and they themselves should be going to the Dr and getting health management and not relying on the company to have to force feed them information.

The fact they have recieved warnings before getting to the final warning would indicate they have problems they need to sort out and they themselves should know this and deal with it before it escalates.

dickydonkin

Googlewhacker wrote: »

Sorry but the companies are not there to pander to the employee, the employee knows if they have persistant illness problems and they themselves should be going to the Dr and getting health management and not relying on the company to have to force feed them information.

The fact they have recieved warnings before getting to the final warning would indicate they have problems they need to sort out and they themselves should know this and deal with it before it escalates.

Some very valid points raised, but would it not be in the interest of the employer to even attempt to ascertain what is causing the problems prior to considering dismissal?

There may be an underlying problem caused by the working environment.

For example, suffering from stress (a condition many people have without realising it) can weaken the immune system and make that person more vulnerable to infections.

Is there an issue with the workplace environment that is causing the illnesses? Could that person be allergic to something in the workplace? Is she working in a damp environment? I can go on.

One example I can cite is when a cleaner was always ill with respiratory issues - it turned out that she was being exposed to spores from mould accumulating around showers and bathrooms. It only affected this person - but we are all different! Control measures were put in place and the problem was solved!

I will concede that an individual should make an effort to ascertain why s/he is vulnerable to infections on a regular basis, but from experience, I never assume that the workplace is not a contributing factor.

The employer should exercise a duty of care as well - even if it just a 'back covering exercise' in the event of a subsequent claim for personal injury or unfair dismissal dropping on the 'in tray'.

Showing someone the door without providing any assistance may suit the employers needs in the short term - but such action could come back to bite if it turns out the workplace was the cause or was a contributory factor of any illness that progressed to be very serious.

I have seen this happen with a devastating outcome.

Despite my defence of the OP's sister, I can also sympathise with the employer (particularly a smaller enterprise) where persistent absenteeism has more of an effect on their operations, however, if I was an employer, I would need to be convinced that my workplace or the workload was not a factor in the illness(es) before releasing that person.