Sickness Record Resulting in Disciplinary Action

fiisch

Hello all,

My girlfriend has been employed by a Healthcare Charity for over four years, during which time she has a poor sickness record (circa 15-20 days per year). She had pneumonia as a child, and working in an environment where bugs are rife, she invariably picks up anything and everything.

To help combat this, her shifts were amended around 18 months ago, and since then her sickness record has improved. A recent amendment to the sickness policy at her workplace was backdated to encompass all sickness in the last 12 months. She has taken two short-term periods pf sickness in July and December, and subsequently they have invited her to disciplinary hearing advising she may be put on a final written notice, despite no previous disciplinary action.

Is there anything I can do to mount a credible defence? Her sickness has been much improved this year, and in my opinion this seems harsh. If it's relevant, she does not get paid sick leave under the terms of her contact.

I've Googled legal precedents and information about sick leave but it seems to be somewhat open and ambiguous, leaving it up to the employer to impose their own terms.

unlikelyheroine

As you appreciate, 15-20 sickness days a year is a huge amount for someone who from the sounds of it has not been seriously ill but is "picking up bugs." No employer would be able to tolerate this indefinitely. It sounds as if work has been reasonable in accommodating this for four years without taking action and trying to give changing shifts. Whilst your other half is not being paid sick pay (I am not sure of the rules on this), someone has to do her work when she is not there.

You could try arguing that the change of policy was unfair but it might not get you very far. Your gf's absences are obviously way above what an employer can manage without doing something about them. Is there anything that realistically can be done to stop her being off so much? I know that if she is ill, she is ill, but there is "can't get out of bed ill" and "could drag yourself in but not feeling very well ill." Many people I know call in sick on the latter when they could go in. I know what the view of many is - "oh if I go in I will make everyone else ill and that's worse", but I know my employer for one does NOT want me to take this attitude.

I know that might not be very helpful but sometimes the answer is try to take less sick leave and let work know that this will be taken on board. I wonder if this post will be unpopular!

sniggings

unlikelyheroine wrote: »

As you appreciate, 15-20 sickness days a year is a huge amount for someone who from the sounds of it has not been seriously ill but is "picking up bugs." No employer would be able to tolerate this indefinitely. It sounds as if work has been reasonable in accommodating this for four years without taking action and trying to give changing shifts. Whilst your other half is not being paid sick pay (I am not sure of the rules on this), someone has to do her work when she is not there.

You could try arguing that the change of policy was unfair but it might not get you very far. Your gf's absences are obviously way above what an employer can manage without doing something about them. Is there anything that realistically can be done to stop her being off so much? I know that if she is ill, she is ill, but there is "can't get out of bed ill" and "could drag yourself in but not feeling very well ill." Many people I know call in sick on the latter when they could go in. I know what the view of many is - "oh if I go in I will make everyone else ill and that's worse", but I know my employer for one does NOT want me to take this attitude.

I know that might not be very helpful but sometimes the answer is try to take less sick leave and let work know that this will be taken on board. I wonder if this post will be unpopular!

not unpopular, it just didn't really answer the OP's question.

@OP check your (GF) works hand book, as a final warning seems harsh and is probably not in line with their own disciplinary procedures.

She would be best going into the meeting arguing that she should be disciplined as their procedures, and she will try her best to improve her attendance.

TBH employees have very little rights these days, her best plan of action is to try and reduce the warning to a verbal, if her employer is intend on giving the warning, be it fair or unfair, there is not much she can do about it, she would have to wait until she was sacked then go to a tribunal, which is not easy and has a very slim chance of winning.

read up on the rules, she should be able to get a copy of the works hand book, then argue they are not applying the rules correctly, to me this would be her best bet, rather than getting into the ins and outs of her illness, keep it simple, hold your (her) hands up and hope they are happy with that and are willing to let her show she can improve.

unlikelyheroine

sniggings wrote: »

not unpopular, it just didn't really answer the OP's question.

@OP check your (GF) works hand book, as a final warning seems harsh and is probably not in line with their own disciplinary procedures.

She would be best going into the meeting arguing that she should be disciplined as their procedures, and she will try her best to improve her attendance.

Well the OP is trying to look for ways that his gf can argue they are being unfair. The truth is they are probably not being unfair, unless, as you say, they are not following their own procedures. So whilst my advice may not have availed the OP much, that's because I expect bluntly the gf is on a hiding to nothing arguing unfairness with that level of sickness.

I suspect they can indeed go straight to a final warning for continued uncorrected illness absences, but as you say, the handbook should be checked to see if that is not correct.

sniggings

unlikelyheroine wrote: »

Well the OP is trying to look for ways that his gf can argue they are being unfair.what else is he meant to do? look for reasons why they are being fair! The truth is they are probably not being unfair,straight to a final after backdating the rules! sounds unfair to me unless, as you say, they are not following their own procedures. So whilst my advice may not have availed the OP much, that's because I expect bluntly the gf is on a hiding to nothing arguing unfairness with that level of sickness. the OP did not say he was planning on arguing the sickness was acceptable, he asked for suggestions for a reasonable argument to make.

I suspect they can indeed go straight to a final warning for continued uncorrected for it to be uncorrected would mean the GF was asked to correct it, she wasn't illness absences, but as you say, the handbook should be checked to see if that is not correct.

can you blame him? I don't know of any employer that goes straight to a final warning when no other disciplinary measure has been taken.

You say "uncorrected illness" but as said the OP's GF has reduced her sickness and as far as we know has not been told her sickness was an issue, so how is she to know to correct it.

unlikelyheroine

sniggings wrote: »

can you blame him? I don't know of any employer that goes straight to a final warning when no other disciplinary measure has been taken.

You say "uncorrected illness" but as said the OP's GF has reduced her sickness and as far as we know has not been told her sickness was an issue, so how is she to know to correct it.

Naturally I don't blame him. Just being realistic. The sickness levels are historically extreme and despite the fact we are told about improvement, there have been two further absences in the last six months. Perhaps the employer should have dealt with this earlier, nevertheless they may on their own policies be entitled to escalate to final warning now if they have determine the sickness amounts to be misconduct that is serious enough. Plenty of procedures allow for this. I agree, it would be harsh in my opinion too, and you are quite right that the relevant procedures should be checked.

marybelle01

fiisch wrote: »

they have invited her to disciplinary hearing advising she may be put on a final written notice.

And opinions here aside, because nobody here is the employer, the bit I have highlighted is the important bit. "May be" - in other words "this is the worst that can happen but we invite you to explain to us why it shouldn't be the outcome". The bottom line is that sickness policies are legal. And they are legal reasons to dismiss. Whether "we" like it or not. So the route is to argue why it shouldn't be a final warning. You can't expect "scot free" - that isn't the world we live in now. Anything less than a final warning is a bonus.


I sympathise with the circumstances, but the longer term answer is to look to either her healthcare providers to strengthen her immune system; or, I am afraid, to say that someone who has a weak immune system should not be working in an environment where bugs she is susceptible to are rife.


It is safe to say that whatever happens this time, she is not going to be dismissed. But if she continues to have high sickness levels, then whatever happens now, she will eventually be dismissed. First warning, second or final - whatever the outcome the writing is on the wall, and she has to find a solution. I don't like saying that, but it's the only truth that matters.


My last UK employer utilised the (public sector) UK average for targets - that was 9 days a year, or three absences; and 11 days for a disability. That is simply an example - every employer sets their own targets - but it puts 15 - 20 days in a context. Few employers will tolerate a month off sick per year. And that is what 20 days is - a month every year.

fiisch

Many thanks for all the replies!

Completely agree regarding sickness - I have often been accused of being unsympathetic of her sickness, but when she is ill she does seem to be pole-axed! Additionally, her work prior to the new policy instructed them to stay at home/sent people home if ill as there is a risk of it being passed onto the residents.

The new sickness policy encourages people who are unwell to come in, but invariably this increases the chance of infection spreading through the home!

To clarify, my girlfriend's sickness is no longer 15-20 days. She has 8 days over 5 periods in the last 12 months (surprised to see the average as high as 9 to be honest, but useful info!) which is not excessive. I sympathise with her work's need to clamp down on sickness. My girlfriend doesn't work weekends, but people have previously called in sick with hangovers! This is why I feel aggrieved that she has had this letter now, after her sickness has improved....

She works three lots of 15 hour days, so if she is ill it is very tough to get through that (especially two back to back). The long term solution is - get a new job. This is the third post I have made on here regarding her job (previous queries re delayed backdating docking sick pay and enforced change of hours).

Thank you for the advice to reduce disciplinary to verbal/level 1 warning. My feeling is, I don't want her to suffer any action which should be disclosed to a future employer. She has responded advising her work she wishes to delay hearing 21 days so she may prepare her case (ACAS not open until after scheduled date of hearing).

The sickness policy is a little watery, but it does say occupational health should be the first resort prior to disciplinary action. Apparently the manager of the home does not like this option as comes out of the home's budget...

Is it something which is worth escalating to head office, or is that likely to cause further aggravation?

sniggings

only you can know that, as each headoffice is different...My general feeling is it would be a waste of time, if the managers are bad/nasty it normally comes from the top anyway.

Don't worry about her record being passed on to other employers, that does not normally happen, the most that happens is, they will either write a reference or not, if they do it is normally basic info such as dates she worked there etc

Sounds as if she would be better off away from there, 15 hour days would make anyone sick and working in a home I am very surprised that is allowed.

They do tend to look worse on people that take multiple sickness days, rather than 1 or 2 longer periods...it's easier to cover someone for a week than to cover someone for 7 separate single days, single days also look less genuine.

Tell her to let it wash over her, and just look for a better job, there are some out there, no need to be working for people like that and 15 hour days :eek:

starrystarry

fiisch wrote: »

To clarify, my girlfriend's sickness is no longer 15-20 days. She has 8 days over 5 periods in the last 12 months (surprised to see the average as high as 9 to be honest, but useful info!) which is not excessive.

I think most employers would feel that 5 periods of sickness in one year is excessive.

marybelle01

fiisch wrote: »

Many thanks for all the replies!

Completely agree regarding sickness - I have often been accused of being unsympathetic of her sickness, but when she is ill she does seem to be pole-axed! Additionally, her work prior to the new policy instructed them to stay at home/sent people home if ill as there is a risk of it being passed onto the residents.

The new sickness policy encourages people who are unwell to come in, but invariably this increases the chance of infection spreading through the home!

To clarify, my girlfriend's sickness is no longer 15-20 days. She has 8 days over 5 periods in the last 12 months (surprised to see the average as high as 9 to be honest, but useful info!) which is not excessive. I sympathise with her work's need to clamp down on sickness. My girlfriend doesn't work weekends, but people have previously called in sick with hangovers! This is why I feel aggrieved that she has had this letter now, after her sickness has improved....

She works three lots of 15 hour days, so if she is ill it is very tough to get through that (especially two back to back). The long term solution is - get a new job. This is the third post I have made on here regarding her job (previous queries re delayed backdating docking sick pay and enforced change of hours).

Thank you for the advice to reduce disciplinary to verbal/level 1 warning. My feeling is, I don't want her to suffer any action which should be disclosed to a future employer. She has responded advising her work she wishes to delay hearing 21 days so she may prepare her case (ACAS not open until after scheduled date of hearing).

The sickness policy is a little watery, but it does say occupational health should be the first resort prior to disciplinary action. Apparently the manager of the home does not like this option as comes out of the home's budget...

Is it something which is worth escalating to head office, or is that likely to cause further aggravation?

I get it. I think everyone does. She is genuinely sick. The problem is that it does not matter if she is genuinely sick - sickness policies are not about what causes the sickness and whether it is genuine. It is simply about triggers and being off sick too often.


I think you need to be clear - sickness absence can be disclosed in a reference. It is a fact. As can disciplinary action. What the employer discloses is up to them, but you have no chance of stopping them disclosing facts if they chose to do so.


That said yes, if the policy is to involve OH then that is what should be done. It cannot make anything worse. So insist on the referral.