Absence from work and disciplinary action HELP!!! (long, sorry!!!)

malcindebt

For the past 12 months I have been suffering with severe problems with one of my knees. I have a ruptured cruciate ligament, and I'm in constant pain every day (though this seems to be an unrelated problem from the Cruciate). Over the past 12 months I have been absent from work for 120 days. 2 long periods (8 weeks and 4 weeks following minor 'Keyhole' surgury) and a ew other 2-3 day periods which is when the knee flames up and swells, and I simply cannot walk and have to rest until the swelling goes down.

Work were very understanding at first, and up until February this year when they decided that they would no longer give any discretion for any further leave I needed, even for this ongoing complaint.

I have been told that should I need further time off, then I will most probably be hit with a disciplinary.

However, I'm not sure this is fair. I have kept them informed every week with what has been happening after every physio appointment, I have written to complain to my consultant as I feel I am being fobbed off and have given a copy of this letter to my manager to show I am trying to get things going.

I even went into work last week with a walking stick to try and just get into work with the knee being bad, something which could possibly made the situation worse. But unfortunately from today, I'm back on the sick as the pain is just too severe to carry on.

I'm dreading going back into work as I know I'll be called in for a disciplinary.

However, I think I may appeal it, and I'm looking for some advise on whether I can use the following information in my appeal letter.

1) The disciplinary procedure at work is this.

1- informal meeting with manager who will advise there is some concern over absence and further absence may resort in ' Formal Stage 1' No accompnyment with union or other person allowed at this meeting.

Formal Stage 1- meeting with manager. In this meeting I am allowed to take a colleague with me. discuss the absences, current problems etc. Manager then goes away and informs of decision, which is either to take no further action, ir to issue a first written warning. If he issues a first written, there is a review period of 15 months in which attendance must improve.

Formal Stage 2-

If attendance does not improve within this 15 month period, then its formal stage 2- again a meeting with manager- discussion- as per formal stage 1- managers decision is either to extend review period, take no action or issue final written- review period of 18 months for attendance to improve.

If attendance still does not improve in this review period then a report is made to a decision maker who will review all the facts from both sides, and will then recommend to take no further action or dismissal.

Quite a complicated process I'm sure you will agree. But, I was under the impression that you had 3 chances, 1 verbal warning, 2 first written, 3 second written . All of which have to be documented, and all of which have to allow for the employee to take representation with them.

Another point is. In November last year my manager advised he wanted further clarification on what kind of discretion he should be giving me by referring me to the occupational health. This could basically save my job based on the recommendation they give to the employer, but I am still waiting for the referral to be sent off, despite my manager advising he would do this on 4 occasions since November.

Work have admitted that this absece is not affecting the quality of my work. Each year we have an appraisal completed based on our work, conduct, etc.
Despite the amount of time I have had off, they have still given me a good marking on my appraisal.

As I work in a contact centre and the opening hours are 8am to 8pm I have offered to amend my working pattern so that I can go to appointments and physio etc outside works time. They refused me this. Instead forcing me to take leave, half day sick days for appointments/physio etc. I even offered to work 4 days per week, giving me a whole day to get any appointments done, Again they refused me.

I'm looking for some real help on this one. I'd love to be able to go to work pain free, to be able to run for my train instead of hobbling along, to be able to walk into town in my dinner hour, but I just can't with the pain I suffer throughout the day.

rach29

Are you a member of a Union? This would be to your advantage as they will be able to offer advice as to where you stand on this.

I spent many years as a union rep & your company's policy looks very similar to the one I used to work with so I answer it in the way I would have for one of my members in this situation.

Firstly do not panic about the disciplinary, remember your boss is just following procedure. You state that you got a good appraisal which is also in your favour.

Are you waiting for treatment for your problem?? Once that treatment has taken place will you be fully recovered?

If the disciplinary is started make sure that everything is documented fuly and that you are given a copy of any notes taken. Make CERTAIN that the referral to Occupational health is documented (that way it might actually happen)

If a review period is set, it is usually set to allow for any future set circumstance (for instance you may have a referral to a hospital consultant due in May) and the second stage may need never happen if this sorts it out.

If it does go to second stage you may be asked to agree for your employer to see your medical records (not nice but necessary ) but these would usually be seen only by occupational Health not your immediate boss.

That should do you for starters, but please feel free to post any questions/concerns you may have & I'll do my best to advise.

GOOD LUCK

nearlyrich

This kind of behaviour by managers is really bad, if you have someone taking the wotsit by all means invoke the policy but if you have someone having treatment for a genuine problem which results in them being in pain and unable to woork it's not quite the same is it?

I hope you get your problem sorted soon.

malcindebt

rach29 wrote: »

Are you a member of a Union? This would be to your advantage as they will be able to offer advice as to where you stand on this.

I spent many years as a union rep & your company's policy looks very similar to the one I used to work with so I answer it in the way I would have for one of my members in this situation.

Firstly do not panic about the disciplinary, remember your boss is just following procedure. You state that you got a good appraisal which is also in your favour.

Are you waiting for treatment for your problem?? Once that treatment has taken place will you be fully recovered?

If the disciplinary is started make sure that everything is documented fuly and that you are given a copy of any notes taken. Make CERTAIN that the referral to Occupational health is documented (that way it might actually happen)

If a review period is set, it is usually set to allow for any future set circumstance (for instance you may have a referral to a hospital consultant due in May) and the second stage may need never happen if this sorts it out.

If it does go to second stage you may be asked to agree for your employer to see your medical records (not nice but necessary ) but these would usually be seen only by occupational Health not your immediate boss.

That should do you for starters, but please feel free to post any questions/concerns you may have & I'll do my best to advise.

GOOD LUCK

Thanks for the quick response.

I am currently waiting for an MRI scan which whill hopefully back up the results of the Arthroscopy I had last year. This then should lead to an operation to replace the cruciate ligament and hopefull solve any other underlying problems.

Once this has been done, I expect I should be able to get on with my life again.

Would it be beneficial to get a copy of my hospital notes ready for when I eventually get to see the occupational health. I may even be able to get them befoer I'm due to go back to work at the end of next week.

The referral to the occupational health has been documented every occasion it has been mentioned- normaly in my return to work meeting.

jobbingmusician

It sounds as if they are trying to start a process which may end in your dismissal for poor health. You can avoid this.

For the purposes of work, you should consider yourself as disabled (your knee problem has a substantial effect on your day to day activities). Your employer has an OBLIGATION to make reasonable adjustments to enable you to continue in your current job. These adjustments are likely to include part time working or adjustments to your working hours, so that you can avoid the very situation which you are in. To find out more, google reasonable adjustments and/or look here
Take out a grievance against your manager for failure to send off the referral to occupational health. The new laws on grievance make it YOUR responsibility to raise a grievance to protect yourself from unfair treatment. More about that here

Keep us informed....

rach29

malcindebt wrote: »

I am currently waiting for an MRI scan which whill hopefully back up the results of the Arthroscopy I had last year. This then should lead to an operation to replace the cruciate ligament and hopefull solve any other underlying problems.

Great, so there is light at the end of the tunnel for you :j This is a good thing for your employer too. What you have is a temporary, treatable condition which (once treated) should return you to work fully recovered. This is what the review periods in this process are designed for, so that you can return to full health whilst your employer can be satisfied that everything is being done to make sure that happens

Once this has been done, I expect I should be able to get on with my life again.

Would it be beneficial to get a copy of my hospital notes ready for when I eventually get to see the occupational health. I may even be able to get them befoer I'm due to go back to work at the end of next week.

It could be, if you are able to get hold of them. It will enable occupational health to put together a plan to assist you whilst at work, while you are receiving treatment and when you return to work after your Op

The referral to the occupational health has been documented every occasion it has been mentioned- normaly in my return to work meeting.

Can you contact them direct? Or could you maybe speak to HR to see if they will sort out a referral for you?

rach29

jobbingmusician wrote: »

It sounds as if they are trying to start a process which may end in your dismissal for poor health. You can avoid this.

For the purposes of work, you should consider yourself as disabled (your knee problem has a substantial effect on your day to day activities). Your employer has an OBLIGATION to make reasonable adjustments to enable you to continue in your current job. These adjustments are likely to include part time working or adjustments to your working hours, so that you can avoid the very situation which you are in. To find out more, google reasonable adjustments and/or look here.

Take out a grievance against your manager for failure to send off the referral to occupational health. The new laws on grievance make it YOUR responsibility to raise a grievance to protect yourself from unfair treatment. More about that here.

Keep us informed....

This is an avenue you can try, however I would advise trying other avenues before taking out a grievance if possible, as this could cause bad feeling with your manager which in the long term may not be to your advantage.

Your employer MUST make reasonable adjustments for you, and they do seem in part to have done this (sitting down on the job etc.) But what should happen is that a full assessment of your needs should be carried out by Occupational Health and a statement of what you need agreed with you and your Boss. Which is why you must do everything you can to make sure this happens even as far as taking out a grievance if neccessary

CFC

Occupational Health - there is no legal requirement on an employer to send someone to OH under these circumstances, so a grievance based on the failure to send documents off would not be a wise move, I feel.

If you are willing to drop your hours in order to only work 4 days a week so that you have a clear day for hospital appointments etc, you should make a request in writing to your employer to do this. You should state that you believe that this is a reasonable adjustment which you suggest could be made in order to assist you with the ongoing problem with your knee which is having a substantial effect on your daily life. Send this letter to your manager and also drop a copy to the HR department (so it doesn't go missing :rolleyes: )

It may or may not be reasonable for your employer to make this adjustment, I have no idea as it depends on the size of your employer etc. Keep a copy of the letter. Let us know what response you get.

At the end of the day, please be aware that if the worst comes to the worst, a disciplinary in these circumstances is no reflection on you, or on your work. This would be a capability disciplinary ie not about your conduct, but about whether you were actually physically capable of doing your job and attending work, and your employer would not be suggesting that your absence was deliberate.

It's just that an employer cannot keep for ever somebody who has a huge absence level, because the job still needs doing. Someone who is fantastic when they are at work but is never in is not as useful as someone who is not very good but is actually there....

Because of that, an employer can in fact still sack a person regardless of the new disability discrimination act, they just have to be very cautious and careful about how they do it and what processes they follow before hand.

rach29

CFC wrote: »

At the end of the day, please be aware that if the worst comes to the worst, a disciplinary in these circumstances is no reflection on you, or on your work. This would be a capability disciplinary ie not about your conduct, but about whether you were actually physically capable of doing your job and attending work, and your employer would not be suggesting that your absence was deliberate.
CFC is spot on here, this is a case of your employer following a procedure & no reflection on your ability to do your job

It's just that an employer cannot keep for ever somebody who has a huge absence level, because the job still needs doing. Someone who is fantastic when they are at work but is never in is not as useful as someone who is not very good but is actually there....

This is the reason for the procedure being in place. Some employees may never get well enough to return to work & in those cases it would not seem unreasonable for the employer to let them go. However, your situation is different and you should be able to get your employer to work with you over the review periods set to allow you to get the operation you need & recover properly then return to work fit & well

Because of that, an employer can in fact still sack a person regardless of the new disability discrimination act, they just have to be very cautious and careful about how they do it and what processes they follow before hand.

I get the impression you work for a large/multinational Co' am I correct??

ckerrd

I fail to see why your employer should be going down a disciplinary route at all.

I have dealt with situations where staff have been off for a long time and at no time did I even consider a disciplinary procedure.

Being unable to work for a medical reason is something that needs to be discussed with your employer in a sensible manner.

From my own experience, I have had staff who have had their hours, type of work and shift patterns changed to accommodate them. Twice we have had to retire people on the grounds of ill health. This was where we could find no alternative at all but the process of looking for other types of work took some time. Both employees left with a decent pay-off.

Your employer should have procedures to deal with this and should be nothing like you describe.

malcindebt

The employer I work for is possibly the biggest in the country. I'm a servant of the crown (civil servant).

I agree with the comment that CFC raised about there being no legal requirement to send me to OH, but it has been promised on 4 occasions, in order to give them more of an understanding of where discretion should be given.

The condition I have is a temporary condition, with surgery it will improve, and so I will be able to continue my duties as normal once this has been done.

My argument is that I have kept them informed of every appointment, every referral, every physio appointment, various test results, I've even wrote to the health trust for a copy of my notes, at an expense to myself of £25.

They have admitted I am good at my job, but, I feel as though I'm being made out to be someone who is cheating the system, someone they are trying to catch out. Which I'm not.

I wish I could go to bed and not suffer with severe pain throughout the night, I wish I could walk from the train station without the pain, or my knee giving way. But when I explain this to them all I get is, 'We have to be seen to be fair to everyone with regard to action for continued absence.'

That would be fine, but I can guarantee there is not another person in the department with the same condition I have, so how can they not take that into consideration.

Reading through the sickness guidance again yesterday it actually states, 'Employees should not feel pressuerd into comming into work when they are not fit to do so.'

But when you don't come in there's trouble. NO WIN situation.