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Help with appeal. Opinions?

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  • Help with appeal. Opinions?

    I have recently (Nov12) been diagnosed with Menieres disease, which consists of head pressure, tinitus, vertigo, and hearing loss. It is not cureable and likeley to get worse over time resulting in "drop" attacks and deafness. MD is covered under the DDA.

    Anyway, I have worked in the same role for 6 years and have only had one absence in all that time until February this year, when I collapsed and had a vertigo attack and was off work for 2 days. Then in April, I contracted a flu virus, which combined with the MD knocked me out for two weeks and I was absent again for 11 days.

    Work have a new sickness policy that says if you are absent for longer than 10 days you may have a back to work meeting - I was given the impression it was just a formality, my manager confirmed my reason for absence and said she had no issues with either absence or my performance.

    How wrong I was! The meeting was very formal, and because I couldnt prove that Flu and MD were "linked" I was issued a verbal improvement notice. Neither my previous record or my recent diagnosis were taken into account. (My opinion is she had decided before the meeting to issue a warning and was looking for an "in" by asking questions I could not answer.

    I was very upset and requested an appointment with Occupational Health, to cut a long story short, she backd me 100% and reported that they were linked and that the flu was bound to vastly intensify my MD symptoms, and that adjustments should be made to take higher levels of absence into account.

    Anyway I have put in an appeal with the above reasons and stated that she should have adjourned the meeting when the MD was discussed (as she obviously knew nothing about it) gone away and spoken to OH and reconvened with her judgement. My managers and OH are all very supportive but her answer is that "I have issued it now, I can't take it back"

    So now I wait for my appeal meeting with her Manager (and best freind) and wondered if anyone had any advice or opinions on my situation?
    Tags: None

  • #2
    Re: Help with appeal. Opinions?

    There is a very good member on Employment Law here who I suspect will reply tomorrow. At least you will know exactly where you stand after their advice.

    Comment


    • #3
      Re: Help with appeal. Opinions?

      Thanks Labman!

      I just also wanted to add that I stated that the flu was aggravating my Meniere's Disease each time I called the Absence answerphone. These messages have been deleted!!!! But apparently written down "Verbatim" The notes do not at any point mention the MD.

      Plus, can anyone tell me whether someone who is not a Manager, and certainly not my superior can issue warnings, without consulting my line manager? (Her job title is HR Advisor)

      Comment


      • #4
        Re: Help with appeal. Opinions?

        OK. I am afraid that in common with 150% of the general population, you are labouring under several misapprehensions about the Equality Act and the protections it does or does not offer in relation to disability. So let's deal with those first before getting into the specifics of the situation.

        BTW, the Disability Discrimination Act was repealed! The relevant legislation is, as stated above, the Equality Act.

        The Equality Act does not say that absence related to disability may not be counted as part of a managing sickness absence policy. Absence is absence, and "good reasons" for absence are in no way relevant to such policies. This is a common misconception, and I have heard all the "good reasons" - it's a disability, it's a "real" disability (not sure what the difference is, but that's been said!), I was really ill, I had a doctors note.... It does not matter. Managing absence policies manage absences, full stop. What the law allows for is that discounting some or all of absence relating to a disability MAY be a reasonable adjustment - but the law does not say that an employer MUST, and whether or not the adjustment may or may not be reasonable is, in the final analysis, something that only an employment tribunal can determine. There is no automatic right to this, and there are quite definitely circumstances which an employer can argue that such is not reasonable. The difficulty with being placed in a position of having to ask a tribunal to detremine this matter is that, by the time they do, you are 95% likely to be unemployed already, annd if you are not, probably on the hit list. This is the real world, not one in which to float naively - so the primary goal must be to try to resolve matters before you (a) end up in a risky position of having to depend on what a tribunal thinks and (b) unemployed, and with a sickness record that may well prevent you from easily obtaining any further employment no matter what a tribunal thinks.

        The second point is contained in here already, but I am going to say it very specifically. The purpose of managing sickness / absence policies is to do exactly that. Employers, in the main, no longer tolerate high levels of absence regardless of how good your reasons are. Reasonable adjustments for disability aside, failure to attend work has consequences, and the ultimate consequence is that unless attendance improves then a dismissal will follow. This is entirely lawful provided the policy is followed, and that policy complies with the (very basic) requirements of the law for a fair dismissal.

        Those are the "ground rules" in which your circumstances exist, and you need to understand that very clearly.

        No managing sickness absence policy is "just a formality" - in essence it is a form of disciplinary procedure, in that it's ultimate outcome may be dismissal. But neither is it about whether you perform well when in work (the issue is your absence from work, not your performance when there!) or what a manager personally thinks of your illness. It is not a judgement call, it is an absolute - nobody is questioining whether your illness was genuine or justified, just the fact that you are absent. Previous record of attendance is irrelevant, as is disability - you hit the trigger point and you are in the procedure and that is the final word on it.

        The only variation to this is, therefore, what that trigger point is. Since you have not agreed a different trigger point - i.e. you had not previously asked for a variation due to disability and such had not been agreed - then the same trigger point applies to you as to everyone else. Your manager was therefore technically correct in law in issuing a warning - in other words in treating you equally! She "might" have decided to take the advice of OH before this - but (a) she did not have to and (b) OH advice is exactly that - ADVICE - and it is not binding on the employer at all. Failure to implement OH advice MAY act to an employers detriment if the matter comes to court, but only if they cannot justify their position. OH do not decide on the employers behalf what is reasonable, the employer does.

        The managers assertion that she has implemented the employers policy and cannot now take it back is correct. IF, and it is only if, a reasonable adjustment to the trigger points or tragets is agreed for you individually, then she cannot apply that restrospectively. She has implemented the policy as the employer intended, and that is her job. That does not mean that an appeal may not be successful - but the correct and appropriate procedure that a warning can only be overtiurned or taken back on appeal. That appeal may choose to find that in light of the new information, the warning should be removed this time, or that the trigger points should be amended, or that the targets set for the future should be amended. Equally it may decide none of those things. But an appeal is the correct way forward. This is not about blame - either on you for being absent, or the manager for implementing the employers policy.

        Finally, whoever the employer appoints to manage processes is the person that they appoint. They do not have to be your manager. Nobody is acting "as themselves" - they are acting as the employer, and their authority is derived from the employment relationship. Your dispute about this is not that XX HR Advisor decided this thing; it is that the employer decided this thing and chose a member of their management team to "deliver" their process.

        Comment


        • #5
          Re: Help with appeal. Opinions?

          Blimey!

          Originally posted by Eloise01 View Post
          OK. I am afraid that in common with 150% of the general population, you are labouring under several misapprehensions about the Equality Act and the protections it does or does not offer in relation to disability. So let's deal with those first before getting into the specifics of the situation.

          BTW, the Disability Discrimination Act was repealed! The relevant legislation is, as stated above, the Equality Act. Okay, unfortunately as well as being not medically qualified, I am not aware of verse and chapter of the DDA (now the Equality Act). I am only aware of what I have been informed by Occupational Health, and what is stated on our sickness absence policy.

          The Equality Act does not say that absence related to disability may not be counted as part of a managing sickness absence policy. Absence is absence, and "good reasons" for absence are in no way relevant to such policies. This is a common misconception, and I have heard all the "good reasons" - it's a disability, it's a "real" disability (not sure what the difference is, but that's been said!), I was really ill, I had a doctors note.... It does not matter. Managing absence policies manage absences, full stop. What the law allows for is that discounting some or all of absence relating to a disability MAY be a reasonable adjustment - but the law does not say that an employer MUST, and whether or not the adjustment may or may not be reasonable is, in the final analysis, something that only an employment tribunal can determine. There is no automatic right to this, and there are quite definitely circumstances which an employer can argue that such is not reasonable. I am not trying to use the Equality act to give my absence a "good reason" I am not asking for any unreasonable adjustments to my absence, I am just asking them to take into account that what may be "just flu" for one person, when added to my MD knocked me out for two weeks rendering me unable to come into work despite my best efforts!! I am not planning to take any more sick leave from work at all, however due to the nature of MD, this cannot be set in guaranteed.

          The difficulty with being placed in a position of having to ask a tribunal to detremine this matter is that, by the time they do, you are 95% likely to be unemployed already, and if you are not, probably on the hit list. This is the real world, not one in which to float naively - so the primary goal must be to try to resolve matters before you (a) end up in a risky position of having to depend on what a tribunal thinks and (b) unemployed, and with a sickness record that may well prevent you from easily obtaining any further employment no matter what a tribunal thinks.

          I am not by any means already on the "hit list" as I have said previously during the whole almost 7 years with the firm this is only my second absence, I am known for going above and beyond and coming in ill, where most others would stay at home! The only reason I hit a trigger point is because I was off for over 10 days (11 days). This is my first verbal warning, and I feel that it was rashly made before all points were considered or taken into account. In fact when I told my Head of Department I had a warning he laughed, because he thought I was joking!



          The second point is contained in here already, but I am going to say it very specifically. The purpose of managing sickness / absence policies is to do exactly that. Employers, in the main, no longer tolerate high levels of absence regardless of how good your reasons are. As I said I do not feel I had a high level of absence. I was ill, once, the doctor signed me off, there were other reasons for my contracting the illness so ferociously.

          Reasonable adjustments for disability aside, failure to attend work has consequences, and the ultimate consequence is that unless attendance improves then a dismissal will follow. I would like someone then to explain how I can improve on 2 absences in 7 years due to a very new diagnosis of a very scary disease!

          This is entirely lawful provided the policy is followed, and that policy complies with the (very basic) requirements of the law for a fair dismissal.

          Those are the "ground rules" in which your circumstances exist, and you need to understand that very clearly. I do understand that but also vice versa!

          No managing sickness absence policy is "just a formality" - in essence it is a form of disciplinary procedure, in that it's ultimate outcome may be dismissal. But neither is it about whether you perform well when in work (the issue is your absence from work, not your performance when there!) or what a manager personally thinks of your illness. It is not a judgement call, it is an absolute - nobody is questioining whether your illness was genuine or justified, just the fact that you are absent. Previous record of attendance is irrelevant, as is disability - you hit the trigger point and you are in the procedure and that is the final word on it. Policy states . " These meetings will not be held as standard procedure but in such cases where you are returning to work on revised or reduced duties as set out in your ‘fit note’ or where there are concerns regarding the reasons for your absence or relating to your continued health and well being following recent absences." The absence improvement meeting may be adjourned at any point if it is considered necessary to obtain professional medical evidence or advice before proceeding further.
          All relevant circumstances will be considered including the nature of the medical condition which has resulted from the absences in question, your previous attendance, length of service and any other relevant considerations including the need, if any, to make any reasonable adjustments in accordance with a medical condition or impairment falling within the Equality Act 2010.

          It also states that these meetings are not held as standard but "where level of unsatisfactory attendance has been identified by reason of the length of your absence or because you have had previous absences"During the meeting, the reasons for your absence(s) and the circumstances surrounding them will be discussed. As a result of this, any appropriate steps to aid the improvement of current absence levels will be taken. This may include issuing an absence improvement notice and/or arranging to provide further support/assistance in relation to your health and wellbeing.


          The only variation to this is, therefore, what that trigger point is. Since you have not agreed a different trigger point - i.e. you had not previously asked for a variation due to disability and such had not been agreed - then the same trigger point applies to you as to everyone else. Your manager - was therefore technically correct in law in issuing a warning - in other words in treating you equally! She "might" have decided to take the advice of OH before this - but (a) she did not have to and (b) OH advice is exactly that - ADVICE - and it is not binding on the employer at all. Failure to implement OH advice MAY act to an employers detriment if the matter comes to court, but only if they cannot justify their position. OH do not decide on the employers behalf what is reasonable, the employer does.

          Policy states:

          "Certain absence types will ordinarily not be included or contribute to an absence review point being reached and will instead be classified as a ‘special circumstance’ absence. In these circumstances, a return to work meeting will be held to discuss the details of this absence. The following will be classed as special circumstances: EG: Absences related to a disability as defined by the Equality Act 2010;
          Absences related to ongoing or re-occurring medical conditions where specific treatment and/or investigation is being undertaken in conjunction with the firm’s occupational health advisory service.

          The managers assertion that she has implemented the employers policy and cannot now take it back is correct. IF, and it is only if, a reasonable adjustment to the trigger points or tragets is agreed for you individually, then she cannot apply that restrospectively. She has implemented the policy as the employer intended, and that is her job. That does not mean that an appeal may not be successful - but the correct and appropriate procedure that a warning can only be overtiurned or taken back on appeal. That appeal may choose to find that in light of the new information, the warning should be removed this time, or that the trigger points should be amended, or that the targets set for the future should be amended. Equally it may decide none of those things. But an appeal is the correct way forward. This is not about blame - either on you for being absent, or the manager for implementing the employers policy. I am not blaming anyone, (as much as I would like to) I am merely assessing whether 2 absences in 7 years contributes to unreasonable absence levels, whether I could have done anything differently and how/if I can improve on an absence, based on a diagnosis which, to me is very new and very scary and totally unpredictable. I was already beating myself up when I realised that in the later stages of MD, most people are unable to hold down there jobs effectively.

          Finally, whoever the employer appoints to manage processes is the person that they appoint. They do not have to be your manager. Nobody is acting "as themselves" - they are acting as the employer, and their authority is derived from the employment relationship. Your dispute about this is not that XX HR Advisor decided this thing; it is that the employer decided this thing and chose a member of their management team to "deliver" their process.
          Should I not question her authority to "deliver the process"?

          I would also like to point out that I am in no way trying to use the equality act to my advantage, or to ask for any "favours" regarding my absence. (I would hate to be "that type of person" I am just trying to point out that "template rules and regulations" and the "I am just doing my job" are, at best, morale destroying.

          Feel like I have had my wrists slapped again

          But thanks for your input.
          Last edited by Qpips; 21st May 2013, 13:10:PM.

          Comment


          • #6
            Re: Help with appeal. Opinions?

            Qpips.

            You appear to be taking an explanation of what your legal position is and how the law interprets that very personally indeed. I did not accuse you of using the Equality Act to your advantage - I explained what the Equality Act says about your situation. I didn't suggest you were asking for favours - I explained what the law requires and does not require an employer to do. I spent a great deal of time explaining this in the exact context you described and based on the information you provided. Clearly this was not what you expected, or wanted; and it is not to your liking. So I withdraw from the thread. But thanks for your response - I shall make sure in future that people actually want the questions they are asking answered before spending so much time on a response.

            Comment


            • #7
              Re: Help with appeal. Opinions?

              Well it certainly wasn't intended that way, but thanks anyway.

              Comment


              • #8
                Re: Help with appeal. Opinions?

                Right so maybe I am taking things too personally, and trying to avoid a slur on my previous good record. Occ health advises me to appeal as my symptoms, ( despite how much I try to deny it) are only going to get worse, which will inevitably mean another absence. However, I don't want to be one of those people who argue with every new policy and procedure. This has been such a stressful time, compounded by the threat of redundancies at work, plus other personal issues. Perhaps it would just be easier to "roll over, and sick it up" - so to speak. I am sorry if I have angered or offended anyone.

                Comment


                • #9
                  Re: Help with appeal. Opinions?

                  Fair enough. Now read what I said again without taking it personally. Because not taking it personally is your way forward. Sit in your employers place and see what the policy means from their position. They pay people to work, not to be sick / parenting / or whatever. As I often point out - they are employers and not social services. This may not be palatable, and it may not be what people want employers to be like, or how they want the world to be - if not, then you join a political party and try to change the world. Until that change comes, you live with what you have.

                  Now what you have is a policy that, in order to be lawful, must be applied equally to everyone. That is the laws starting point - not the exceptions. I understand what you mean about never having had time off sick before, but that doesn't matter. It's like (and I hear it alot) "I can't be charged with gross misconduct - I've never done anything wrong before!". Well yes you can because there's a first time for everything! In sickness terms, this is your first time. Bad luck, but there we go. No point in getting exercised about that. Your argument isn't with the policy (well if it is, don't go there, because you won't win) or the person applying the policy. Your argument is that you feel the employer ought to consider new information which was not available to them at the time, ad make some adjustments to help you in dealing with your condition. Don't expect to get all "disability related" illness discounted - few employers will accept that. But look for something that you can both live with. Because in all probability you are going to have to live with whatever they decide - and make it work. Such adjustments may be adaptable over time as your condition worsens - but it really does depend on how far the employer can reasonably go, and the expectation is too often that they must comply with and accede to everything, which is far from the case. If you can't be cured, and if it is going to wrsen, you want them onside as far as possible and as long as possible.

                  Comment


                  • #10
                    Re: Help with appeal. Opinions?

                    I don't think you've offended anyone. Eloise is very good, but what you get is a totally unemotional statement of exactly where you stand. It may not be to your liking, but it is how it is set out legally. I guess it doesn't mater whether you've had seven years or 70 years of service, once you past that 10 day trigger, it would appear this policy kicks in.

                    The issue I see with you, though I know almost nothing about Employment Law, is your employer distinguishing between whether your return to work is classified as 'special circumstance' due to the Equality Act or not.

                    Have you informed your employers of your disability?

                    Sorry Eloise - post crossed!

                    Comment


                    • #11
                      Re: Help with appeal. Opinions?

                      Originally posted by labman View Post
                      I don't think you've offended anyone. Eloise is very good, but what you get is a totally unemotional statement of exactly where you stand. It may not be to your liking, but it is how it is set out legally. I guess it doesn't mater whether you've had seven years or 70 years of service, once you past that 10 day trigger, it would appear this policy kicks in.

                      The issue I see with you, though I know almost nothing about Employment Law, is your employer distinguishing between whether your return to work is classified as 'special circumstance' due to the Equality Act or not.

                      Have you informed your employers of your disability?

                      Sorry Eloise - post crossed!
                      Bang on the head - 7 or 70 years, it's the threshold that matters.

                      The OP should have informed their employers of the diagnosis, but if they didn't it probably won't make a lot of difference at this stage. The thing is, that with the exception of certain specified conditions, nothing is automatically a disability. There are things more likely to be than others, but it is exceedingly complex - for example, because the condition will last longer than 12 months that qualifies it - but the condition must also have an significant impact on day to day normal activities, and at this stage that isn't the case! So does it qualify or not - the best position to be in in not having to find out! Something that both the OP and the employer can live with is the optimum position and the best way to forge an agreement that will allow the OP to continue working for as long as possible is what the OP needs. You don't get that by fighting with your employer over points you can't win. Find a solution that they can live with and you may just get brownie points for solving their problem for them...

                      Comment


                      • #12
                        Re: Help with appeal. Opinions?

                        I informed my employers (managers) of my disability when I was diagnosed (Nov). I had an informal chat with OH regarding self management techniques etc, at the same time. I informed HR department when I called in absent, and at the review meeting.

                        It would seem that I may be better to withdraw my appeal and just accept the verbal improvement notice?

                        Comment


                        • #13
                          Re: Help with appeal. Opinions?

                          No. Appeal but be willing to compromise. The point here is to sound reasonable. Don't go after the policy, don't go after the people - go after the circumstances. Reasonably. "You may not have understood the implications of my diagnosis. I didn't really fully understand it either. This is what is. I want to work with you to enable me to continue my good service..." Don't blame, don't accuse... and if the best you can achieve is some future leeway, accept that. You are a long way off being dismissed. You can get back from a single warning. The main purpose is the future, not the past. If you can get the warning back as well, that's icing....

                          Comment


                          • #14
                            Re: Help with appeal. Opinions?

                            Originally posted by Eloise01 View Post
                            Don't blame, don't accuse.
                            What sagacious and excellent advice, not just for this appeal but generally in life!

                            Comment


                            • #15
                              Re: Help with appeal. Opinions?

                              Originally posted by Eloise01 View Post
                              No. Appeal but be willing to compromise. The point here is to sound reasonable. Don't go after the policy, don't go after the people - go after the circumstances. Reasonably. "You may not have understood the implications of my diagnosis. I didn't really fully understand it either. This is what is. I want to work with you to enable me to continue my good service..." Don't blame, don't accuse... and if the best you can achieve is some future leeway, accept that. You are a long way off being dismissed. You can get back from a single warning. The main purpose is the future, not the past. If you can get the warning back as well, that's icing....
                              Thanks, I would HATE to be labelled as troublemaker - I think I would rather have a warning!!!!

                              Comment

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