disciplinary dismissal and redundancy

annmark61

Hi I am an employee of eight years, working for a global employer. Due to the contract ending at my place of work redundancy is due very shortly. I returned to five weeks ago after 91 days sickness absence -stress related due to family illness and bereavement. Also the sudden withdrawal of a prescription pain medication leading to a period of intense anxiety. In my absence I had been moved to a new team on a different department. Last week I was invited to a stage one disciplinary for sickness absence which I attended with a union rep. I explained my case, was asked to wait outside while an outcome was discussed. After fifty minutes we were called back in to the meeting. My line manager then informed me that she was adjourning the meeting and consulting HR as she was looking to dismiss me on capability grounds. I was extremely shocked as there has been no mention at all of dismissal or any feedback regarding my ability to do my job. My new team has meant learning a completely new skill set which I thought I was coping with well with very little support from my manager.
After reading every sickness /disability company code of practice I could find I have raised a grievance against my line manager, this is with reference to lack of support and excluding me from team emails , meetings and work allocation not the disciplinary action. I have been invited to an informal meeting with a senior manager on Monday afternoon and also a reconvening of stage 1 the following Thursday. I have had no opportunity to respond to the capability allegation and have been provided with no evidence of the basis for this.
Can I ask for any advice of how I should handle both of these meetings surely a stage 1 sickness absence meeting cannot turn into a dismissal on capability grounds and am I within my rights to address the capability issue in the next meeting. I am at a loss and very upset any advice would be really, really appreciated

maginot

What has your union rep advised?

What are the grounds of dismissal due to capability, is it because of sickness or work?
They shouldn't be discussing work capability during an absence meeting, if this was the case then your Union rep should have raised this in the meeting.
If it is due to absence I can't see how they can go from stage 1 to dismissal when you have returned without absence for the past 5 weeks. There would have to be evidence that your sickness prevents you from working in your role.

You said you are working in a different role, is this a short term measure as you are still not fit to return to your previous role, or is it because they just wanted you within this role? They could potentially be arguing that you are incapable of returning fully to your previous role and trying to dismiss this way. Although there really should be a plan and criteria that need to be met after stage 1 e.g. Phased return within this role and then move back to working in previous role after a certain time period, if unable to then move to stage 2 etc.

Ensure you fully read their sickness and absence policies and their capability policies to ensure they are following correct procedures.

It is important not to muddy the waters with the grievance though, as a grievance is completely separate to the absence procedure being undertaken (although there are a few occasions when a grievance may be investigated first before continuing with a dismissal).

Speak with your Union official and your Union is likely to also have helplines that can also help with support.

So important that you do get this support, as if you say many staff are going to be made redundant soon, it could be the case they are trying to dismiss you without having to pay redundancy compensation.

annmark61

Thank you for replying. Firstly I have no idea if the capability issue is work or sick related(ridiculous situation I know!) The stage one letter was for sickness absence. Capability was only mentioned in the meeting . The Union rep never had a chance to respond as manager and note taker adjourned and left the room immediately. The different role is due to business need as the contract is ending, the job role is changing. I am fit for work and after phased return I am back to full time hours. I also had an occupational heath telephone consultation three weeks ago which confirmed I am fit for work. I am meeting with union rep on Monday morning so I hope to know more then. I am also wondering if saving redundancy pay is a factor. Again thank you for your prompt reply

sangie595

Capability is the formal description of a dismissal on the basis of sickness - you are dismissed because your sickness has rendered you incapable of working according to your contract. It is highly unusual for a stage 1 to lead to immediate dismissal, but that does depend on what your policy actually says - 91 days of sickness is also a very long period of time off work. I am surprised that this did not come up with your conversation with the union rep after the event - an explanation that capability in these circumstances means long term sickness.

Unfortunately, without being aware of what you have done, you have now escalated it all to a point where I am going to have to warn you that, whatever the outcome at this time, you need to start looking for a new job, because I think your future with this employer is going to be short now. You see, you have taken what was said to you to mean something entirely different, and jumped the gun by submitting a grievance against your manager, making some serious allegations in relation to her poor management. Regardless of whether this is all accurate or not, it bears no relationship to the capability process you are in, but it is an attack on her - I cannot imagine that she would welcome this, and you have probably burnt every bridge you might have ever had with her. If you are not dismissed this time, you can expect her to be looking for further ways to manage you out. I am quite shocked your union supported you in doing this - they surely ought to have known that it was (a) the worst thing you could do and (b) had no relationship to the capability process and would have no bearing on the outcome of a decision about your sickness. You did consult your union before doing this thing, didn't you?

Perhaps the most tragic thing is that the manager actually adjourned the meeting to take advice from HR - which is the correct thing to do, and which, although I don't know what the company policy is on sickness absence, was quite likely to result in a reply that was not to dismiss, but to set a review period. Since you do describe this as a stage 1 meeting, I would be most surprised if HR agreed that dismissal was appropriate before further stages were completed. After long term sickness it may be appropriate to go straight to a stage 3 if further targets are not met, but any employer large enough to have a multi-stage sickness process and a separate HR function ought to know that dismissal in the first instance would be highly risky for them.

So, in effect, you have attacked your manager "back" on the wrong grounds - had this all come to a possible dismissal for the sickness alone, I would have thought that you stood a very good chance of winning a sickness review meeting or an appeal; and if not that, a very good chance of an employment tribunal. You probably still do. Which is almost certainly why they won't dismiss you for this now - it would never have been a strong case for them unless there is further sickness. But what you have said about your new manager is unlikely to be forgotten, by her at least; and I would expect this will do nothing for your long term job security.

I'm sorry, but I think you need to start looking for another job. Or, if your employer is large enough, redeployment again to get a fresh start.

Undervalued

sangie595 wrote: »

I'm sorry, but I think you need to start looking for another job. Or, if your employer is large enough, redeployment again to get a fresh start.

I largely agree with everything Sangie has said.

It might be worth considering looking for a settlement agreement (used to be called a compromise agreement). They clearly want you out but may well be hesitant to dismiss at the moment. If, via your Union, you offer to go "quietly" in exchange for a sum of money and a decent reference it may be the best outcome and there is a reasonable chance your employer may agree.

sangie595

Undervalued wrote: »

I largely agree with everything Sangie has said.

It might be worth considering looking for a settlement agreement (used to be called a compromise agreement). They clearly want you out but may well be hesitant to dismiss at the moment. If, via your Union, you offer to go "quietly" in exchange for a sum of money and a decent reference it may be the best outcome and there is a reasonable chance your employer may agree.

I'd agree that this may be an option.

Although it may not be the case that they wanted you out originally. I know the manager said she was looking at it and needed to talk to HR, but in the absence of knowing the employer and their policies, it may be nothing more than the period of time off sick falls within the area where dismissal is common for them. Or it may be an inexperienced manager. Or even, it is just possible that it may be something you have said that has been misunderstood. As I said before, in staged policies the norm is that you get targets at stage 1 and that you only move towards dismissal if you miss them. You hadn't had any sickness prior to this period? Or any meetings about sickness previously? In a lot of local authorities now, long term absence is putting people straight on to stage 2 of three stages, and short term sickness is dealt with under a separate part of the policy, but the outcomes can be cumulative, so a warning under one is counted towards a warning under the other. I believe colleagues in the NHS say that trusts are beginning to do the same thing.

But at this stage it is really more of an academic exercise, because the grievance has complicated things enormously. And I doubt matters can be easily repaired. Can I ask, if you were to lose your job, what would the chances of getting another one be? And what sector are you working in? Would you want, or need, to repair this if you can?

annmark61

I work for an outsourcing company on a government contract which is coming to an end very shortly. As I mentioned the remaining employees will be made redundant by March 2017
I submitted the grievance on advice from my union rep given in the five minutes after the adjournment. I saw her again for five minutes on Tuesday when rep took grievance letter to senior manager. I queried again the advice given re grievance at that time and was informed course of action was correct. Obviously I have been ill advised.
I appreciate I had a long absence (extended by a death of close family member) and also very aware of the "sick with stress" claim made by an increasing number of colleagues. The timing of my absence could not have been worse.
I have always exceeded in appraisals, have no other sanctions or warnings for any reason and have never been on a PIP. I just hope I can hang on for redundancy as I think it will be hard enough to gain new employment without having been dismissed.from this job.
Thanks for all the advice.

sangie595

annmark61 wrote: »

I work for an outsourcing company on a government contract which is coming to an end very shortly. As I mentioned the remaining employees will be made redundant by March 2017
I submitted the grievance on advice from my union rep given in the five minutes after the adjournment. I saw her again for five minutes on Tuesday when rep took grievance letter to senior manager. I queried again the advice given re grievance at that time and was informed course of action was correct. Obviously I have been ill advised.
I appreciate I had a long absence (extended by a death of close family member) and also very aware of the "sick with stress" claim made by an increasing number of colleagues. The timing of my absence could not have been worse.
I have always exceeded in appraisals, have no other sanctions or warnings for any reason and have never been on a PIP. I just hope I can hang on for redundancy as I think it will be hard enough to gain new employment without having been dismissed.from this job.
Thanks for all the advice.

Damn - the internet just ate my lengthy reply! I'll get back to you later this morning with some advice!

sangie595

I don't like to criticise my colleagues, and to be fair, I am working only from what you have said here and I also don't know the employer ( although I can make some good guesses at the types of policies they have). But it is pretty hard not to when a union rep walks off leaving a member after a five minute conversation, after that member has just been told they could be dismissed. I can't recall many occasions that I have only had a five minute conversation with a member about anything! But don't give up on the union - this rep may lack the appropriate skills, but you still need the union.

So, you have a meeting to discuss your grievance. And I'm going to assume that you are pretty smart and able to play the game, something your rep appears not to be able to do. You're going to have to keep your wits about you because you can't be certain your rep has theirs with them :rotfl::rotfl:

You need to ascertain that I am correct and that the capability process the manager referred to is about your sickness only. And that's the first thing you need to know. I'd recommend jumping straight in there at the beginning and saying how distressed you are that she / the employer is suddenly raising performance issues that have never been mentioned to you etc., etc I'm sure you know how to play vaguely but not entirely dumb! With a little bit of distressed thrown in. From your user name I am assuming you are female, and women are usually better at these sorts of things than men are. If you can get the manager to confirm that this is about sickness and just sickness, the grievance is not only irrelevant, it's dangerous to you. So you need to start rolling it back.

You do this by "suddenly realising" that you have misunderstood everything. Change the context of your complaints. You only said the manager wasn't supporting you because you thought she meant that your performance was bad, and you'd expected if that was the case she'd have mentioned it and helped you improve. You know what, on reflection maybe those emails you didn't get were a mailing list snafu - somebody just forgot to put your name on the automatic list. It happens - once I reminded someone for THREE YEARS to put me on a mailing list. Honest, that's true! Really, this has all been a huge misunderstandin, and now you feel even worse, because the manager must think you are crazy... You get my drift. If you get dismissed for sickness, this grievance is of no help to you at all (and grievances after the fact are actually pretty useless anyway, even if they are relevant). So you want to get it off the table with the least amount of residual trouble. Even offer to apologise if that will help.

Obviously, if I am wrong about the capability issue, ignore the above!

Next I need some more information from you. You said you have read all those policies. Describe to me what your sickness policy says. Did it have three stages or two? What are the outcomes listed for stage one? Do you know what the trigger point is - how many days sickness? And can you also please tell me what your sick pay is? Have toy any previous periods of sickness? And finally, if you have to, can you tough it out until next March without more sickness?

annmark61

Hi
Thank for replying. My Union Rep was as taken aback as me with the adjournment, she is fairly new to the role and I don't know if she has dealt with a capability issue before. I understand now the difference between sickness v performance "capability" question!
First thing in the morning I will confirm with my manager, that the capability issue relates to the sickness absence only and will, as you suggest, try to limit the damage of grievance and back peddle. Being a woman of a certain age, I will explain my distress at the adjournment of stage 1 meeting and confusion re capability question (not far from the truth it seems !!) I will of course apologise and withdraw my letter of grievance. I still don't understand how the "threat of dismissal" came about when there was no warning of this in my invite letter, but I am going to take this one (very slow) step at a time. I will, out of sheer stubbornness, try and keep my job until march.
Answers to your questions as follows:
I have had two days planned absence for hospital procedure in the last 12 months, no other sickness.
I was on full sick pay - contract states 6 months full pay, 6 months half pay then SSP

Taken from company sickness absence policy

Company absence triggers:

• 4 occasions of absence during a rolling consecutive twelve month period from the last occasion of
absence; OR
• 10 working days‟ absence during a rolling consecutive twelve month period from the first day of the last
occurrence of absence, (pro-rata for employees who are contracted to work less than 5 days per week);
OR
• Any unacceptable level and pattern of absence. For example, this may include sickness absence
immediately before or after public holidays, annual leave or rest periods; or sickness absence on or
immediately after social or sporting events.

Company sickness policy has 3 formal stages.
Outcomes for a stage 1 meeting are as follows:

VI. The meeting could end in a number of ways:
a. the employee may be referred to Occupational Health; or
b. it could be agreed that no further action is needed; or
c. the employee may receive a written warning confirming what they need to do to improve, by
when, and how the manager will support them. If this happens, they will be warned that if
their attendance does not improve as agreed, and is sustained they will move to the next
stage of the formal process
VII. The decision will be confirmed in writing within 5 working days or as soon as is reasonably practicable.
The warning will be placed on the employee‟s file but will be discounted after a period of twelve
months from the date of the meeting..

Thanks again

sangie595

annmark61 wrote: »

Hi
Thank for replying. My Union Rep was as taken aback as me with the adjournment, she is fairly new to the role and I don't know if she has dealt with a capability issue before. I understand now the difference between sickness v performance "capability" question!
First thing in the morning I will confirm with my manager, that the capability issue relates to the sickness absence only and will, as you suggest, try to limit the damage of grievance and back peddle. Being a woman of a certain age, I will explain my distress at the adjournment of stage 1 meeting and confusion re capability question (not far from the truth it seems !!) I will of course apologise and withdraw my letter of grievance. I still don't understand how the "threat of dismissal" came about when there was no warning of this in my invite letter, but I am going to take this one (very slow) step at a time. I will, out of sheer stubbornness, try and keep my job until march.
Answers to your questions as follows:
I have had two days planned absence for hospital procedure in the last 12 months, no other sickness.
I was on full sick pay - contract states 6 months full pay, 6 months half pay then SSP

Taken from company sickness absence policy

Company absence triggers:

• 4 occasions of absence during a rolling consecutive twelve month period from the last occasion of
absence; OR
• 10 working days‟ absence during a rolling consecutive twelve month period from the first day of the last
occurrence of absence, (pro-rata for employees who are contracted to work less than 5 days per week);
OR
• Any unacceptable level and pattern of absence. For example, this may include sickness absence
immediately before or after public holidays, annual leave or rest periods; or sickness absence on or
immediately after social or sporting events.

Company sickness policy has 3 formal stages.
Outcomes for a stage 1 meeting are as follows:

VI. The meeting could end in a number of ways:
a. the employee may be referred to Occupational Health; or
b. it could be agreed that no further action is needed; or
c. the employee may receive a written warning confirming what they need to do to improve, by
when, and how the manager will support them. If this happens, they will be warned that if
their attendance does not improve as agreed, and is sustained they will move to the next
stage of the formal process
VII. The decision will be confirmed in writing within 5 working days or as soon as is reasonably practicable.
The warning will be placed on the employee‟s file but will be discounted after a period of twelve
months from the date of the meeting..

Thanks again

Excellent! That is exactly what I expected it to say. It looks like you have an inexperienced union rep combined with an inexperienced manager. That combination never does well. So yes, I am criticising your rep for trying to handle something she should have passed to someone more experienced ( although, to be fair, this sort of meeting shouldn't have gone the way it did - she probably thought it would be ok). I guess we were all stupid and inexperienced once, although I don't actually remember me ever being that way. And no manager ever walked out of a room first with me - that I am sure of!!!

Your HR can only tell her one thing. She must follow the policy. So she cannot yet dismiss. It'll not be possible to do nothing - even I wouldn't try for b. So it has to be a or c, and probably c. You should get a warning and a target of a limit on future sick days. Which means you will have to drag yourself to work full of flu, stressed, or whatever. Don't take sick time off. Because that few days will be your nightmare fall back - if something dreadful happens that literally knocks you of your feet. You only have a few months to go. Think of that when you feel like being off!

Ok. This is a nasty tactic. But it works. What the hell, employers have nearly everything on their side, and the workplace is a war. You've only just realised that, perhaps,; but all is fair in love and war. You are a woman of a certain age... Can you cry when you need to? Most of us are great at finding mechanisms NOT to, but if we need to, we can usually manage it - I recently pulled the crying game on Sky to get them to cancel my subscription without the two hour hard sell first! Because a few tears "that you can't quite hold back" at the right time can be great - works best with men, but a lot of women fall for it too. If you can get them to the "there, there, don't worry, will sort this out, now please stop crying stage" then you've done really well.

So now you are armed with a strategy. You have weapons. And you have knowledge - you are only at stage one and they cannot dismiss you under their own policy.

So now you only need confidence. Here it comes. Assuming that the capability is about sickness, then the employer cannot, in law, dismiss at this point. If they do, you will win a tribunal. If the employer dismisses in such a way as to deprive you of your right to FULL contractual sick pay, there is case law that says this is unfair dismissal. You would win a tribunal. You actually have an awful lot of law and case law on your side here. They will be idiots to dismiss because it will cost them a lot more than your redundancy pay!

Now... Are you ready for this? What else do you need to know?

And on the off chance it is performance related, which I don't believe, come back and I'll take you through that. And would you tell me what happens too? It's nice to know, and if it's bad, I can try to point you to next steps.