Capability & Email Access Issues

Terrylw1

Hi all,

I'm hoping you can help me as I'm trying to advise a friend regarding her long term sickness issues with her employer as she is not in a union, ahead of pursuing legal advice.

She has been off a while and her employer has been conducting welfare visits on a monthly basis. They now wish to start the formal capability process which is understandable with it being LTA.

However, they have stated she cannot have anyone other than a colleague or union rep in all the way but a member of the family could attend parts of it. They stated that due to company policy, a member of the family could not be present all the way through.

She obtained the latest HR policies from her company via a colleague and it clearly states that a companion is allowed in capability and they can present the case and final details if required.

So, her employers (HR & line manager attending the meetings) are clearly breaching their own policy. I've been searching online for the legal viewpoint and I can't really get what I need. Most sites state it's a colleague or union rep but HR4U states a companion should be offered. (it makes sense since LTA is not something you can bring a colleague into as its very personal and the employee may be embarressed)

Does anyone know where I can access the legal documentation for this because her employers next trick might be to state a companion is not per law, but something they have added...hence they can choose not to use it?

I can't give details of her LTA but I know she is working towards a return with support from her GP and NHS services she has been referred to which all takes a fair bit of time to access.

She also has to raise a grievance against her line manager but it relies on retrieving information held in her work email. Does anyone know in terms of asking for someone to access this (not HR or managers for obvious..."ooops it's all gone missing reasons!") perhaps a trusted colleague without falling foul of any data protection issues? She can't go into work due to her LTA.

Thanks in advance for any replies.

Hiccups_2

The HR department is correct. You have a right to be accompanied by a companion for disciplinary and grievance hearings; however "companion" actually means colleague or trade union rep. This is all they are obliged to do in law (unless your contract / employer's disciplinary procedure says otherwise).

The ACAS guidelines are the ones to follow.

http://www.acas.org.uk/CHttpHandler.ashx?id=1043#page=49

The companion

The companion may be:

• a fellow worker (ie another of the
employer’s workers)
• an official employed by a trade
union
• a workplace trade union
representative, as long as they
have been reasonably certified in
writing by their union as having
experience of, or having received
training in, acting as a worker’s
companion at disciplinary or
grievance hearings. Certification
may take the form of a card or
letter.

Some workers may, however, have
additional contractual rights to be
accompanied by persons other than
those listed above (for instance a
partner, spouse or legal
representative).

Reasonable adjustment may be
needed for a worker with a disability
(and possibly for their companion if
they are disabled). For example the
provision of a support worker or
advocate with knowledge of the
disability and its effects.

Workers may ask an official from any
trade union to accompany them at a
disciplinary or grievance hearing,
regardless of whether or not they are
a member or the union is recognised.

Fellow workers or trade union officials
do not have to accept a request to
accompany a worker, and they
should not be pressurised to do so.

boobies

Yes, Hiccups is correct. Are there any advocacy groups related to her condition, as they may be able to help as a reasonable adjustment? How long is she looking at until she is fit to return, and how long has she been off for?

agrinnall

The email issue is a slightly tricky one. The easiest option, as you mention, is to give the password to a colleague and get them to locate the information, but there are several potential pitfalls with this: she will almost certainly be breaking the employer's rules by disclosing her password, the colleague may have DPA issues if using your friend's email would allow them to see confidential emails that they wouldn't normally have access to, and if the colleague is found to be doing this the employer may not be very happy about it. She could write (or perhaps get a solicitor to write on her behalf) to ask for the emails she wants to be provided to her but to be honest I'm not sure whether the employer would have to do it, I'm fairly sure the emails will belong to them not to her and they can probably do what they like with them. However, I think it would be unreasonable to think that if the request went to HR they would arrange for the emails to be deleted because they are on the side of the manager, unless you know something to suggest that would happen. A grievance procedure has to be followed fairly, and HR should not be taking sides in it.

Terrylw1

agrinnall wrote: »

The email issue is a slightly tricky one. The easiest option, as you mention, is to give the password to a colleague and get them to locate the information, but there are several potential pitfalls with this: she will almost certainly be breaking the employer's rules by disclosing her password, the colleague may have DPA issues if using your friend's email would allow them to see confidential emails that they wouldn't normally have access to, and if the colleague is found to be doing this the employer may not be very happy about it. She could write (or perhaps get a solicitor to write on her behalf) to ask for the emails she wants to be provided to her but to be honest I'm not sure whether the employer would have to do it, I'm fairly sure the emails will belong to them not to her and they can probably do what they like with them. However, I think it would be unreasonable to think that if the request went to HR they would arrange for the emails to be deleted because they are on the side of the manager, unless you know something to suggest that would happen. A grievance procedure has to be followed fairly, and HR should not be taking sides in it.

Thanks, this is what I thought. I've been a manager in this environment and understand email policy in terms of discipline however this is unusual and I haven't come across this before due to the lack of access.

Sadly, the hr rep is actually breaching their own policy and from the comms I've seen it would difficult to trust that person who has stated she is equally persuing the case with manager so i think it would require a non related hr person or maybe occupational health to ask. Given the emails are the only proof of the evidence for greivance, I wouldn't want to trust anybody in that process or connected because once they are gone, there will be no way to get access. Its also unfaue in a colleague because thy could trace the access detils, IP, etc and determine who & when hence I wouldn't want to suggest this. I think she might need some legal advice on this one so perhaps it would be worth starting with acas and then the local legal support the nhs have in this area?

Terrylw1

boobies wrote: »

Yes, Hiccups is correct. Are there any advocacy groups related to her condition, as they may be able to help as a reasonable adjustment? How long is she looking at until she is fit to return, and how long has she been off for?

Thanks for the response.

She's been off 4 months and is in a waiting list for support after seeing her gp, other support services, etc. She is taking steps to help herself and fully co operated with her contract & employer. However, what she didn't know if some of the breaches in hr policy that her employer has already done which I've helped her to document, some of which are by the hr rep. I gather this common at this company as i know one if the trade union reps there who wasn't surprised hence I have advised her to be very cautious.

She can speak to a as and there is a service called Fit For Work in this area who will help and oiaise with employer if needed, its just that there is a lit of detail to collate before going to them as its an ongoing case from before she went off and contributed greatly to her LTA.

Terrylw1

Hiccups wrote: »

The HR department is correct. You have a right to be accompanied by a companion for disciplinary and grievance hearings; however "companion" actually means colleague or trade union rep. This is all they are obliged to do in law (unless your contract / employer's disciplinary procedure says otherwise).

The ACAS guidelines are the ones to follow.

http://www.acas.org.uk/CHttpHandler.ashx?id=1043#page=49

Excellent, thanks. This is what I need so I'll have a look at the link.

I probably didn't make this clear enough in the thread, apologies.

Her written hr policy states all of the above in the capability for long term absence but it states the companion to be someone other than colleague, union rep, etc. This is not present in other capability or disciplinary sections hence I took this as purely because a colleague and often union rep is not best for a personal health issue as the employee may need, say their spouse for support.

The hr rep has actually now confirmed the notes of the meeting saying her family never can't be present. So since the written hr policies they give out state the family member can for LTA only it can be used with this info from acas. I was also concerned they had another motive but its uncover what it could be.

She can now write to them asking why and then if they still won't follow their own written policy I think she will gave to book an appointment to see the Fit For Work service from more detailed legal support. There are other breaches they have made in their own hr policy to consider so hopefully it will all get cleared up in one go. They dont come across as malicious as much as incompetant to me really...they even got her job description wrong, start dates an all sorts of this on referalls to occupational health!

boobies

Terrylw1 wrote: »

Thanks for the response.

She's been off 4 months and is in a waiting list for support after seeing her gp, other support services, etc. She is taking steps to help herself and fully co operated with her contract & employer. However, what she didn't know if some of the breaches in hr policy that her employer has already done which I've helped her to document, some of which are by the hr rep. I gather this common at this company as i know one if the trade union reps there who wasn't surprised hence I have advised her to be very cautious.

She can speak to a as and there is a service called Fit For Work in this area who will help and oiaise with employer if needed, its just that there is a lit of detail to collate before going to them as its an ongoing case from before she went off and contributed greatly to her LTA.

Could someone from Fit for Work attend the meeting with her? They are active in my area also although I am not sure how good they are in practice.

Terrylw1

boobies wrote: »

Could someone from Fit for Work attend the meeting with her? They are active in my area also although I am not sure how good they are in practice.

I know they will speak to your employer so its possible, there isn't much on their website. If the employer continues to be difficult she will have to ask but hopefully pointing the errors out, even to somebody higher in hr might resolve it, if she feels able to. If its going to be too difficult hopefully a call off Fit For Work might warn them off.

burnoutbabe

i assume there is no way of accessing emails from home? ie via webmail? loads of companies have them, you just need to know how to log on to it.

or maybe work could provide a blackberry for her to access work emails for a day or so? or could she not go in, supervised, for an hour to access her pc (or another pc within same building)

Terrylw1

burnoutbabe wrote: »

i assume there is no way of accessing emails from home? ie via webmail? loads of companies have them, you just need to know how to log on to it.

or maybe work could provide a blackberry for her to access work emails for a day or so? or could she not go in, supervised, for an hour to access her pc (or another pc within same building)

Thanks for the response.

its a multnational with many employees with laptops/blackberry so its possible if they perhaps gave her a spare laptop for a day. They won't allow access via other PC's as far as I know as they use some form of issued dongle or code. It might be harder from a blackberry though as she may need to do some printing.

Going in is difficult as she cant attend welfare meetings there as the place is part of the trigger for her issues but perhaps when she is feeling better she could. Perhaps if she asked hr if she could a supervised visit at a low key time, maybe late in an area with few or no other employees to help reduce the trigger issues?