Final Written Warning for sickness absence

[KIP1]

Hi, can anybody advise please, I am a Union rep in a small company (less than 100) and I have a colleague who is currently on a first written warning for a matter unrelated to sickness absence. They recently crossed the trigger point for a formal warning due to their absence levels over the last 12 months, most of which were work-related.. One manager in particular can't wait to escalate from first to final written warning which the employee has challenged as the first written was for something else. Employer is adament that the matters don't have to be related. There seems to have been some selective
re-classification of the absences by the manager in question who I believe has a long standing grudge against the employee, this was a contributory factor in the first written warning.
Can they escalate to a final written for an unrealted matter?
How do we best defend or appeal, on the basis that no hard-working employee chooses to become ill or injured?

Thanks All

K

[atticus]

Have you sought advice from the Union?

[echat11]

https://www.acas.org.uk/disciplinary...linary-outcome

I'm sure ULA will be along to give further Guidance.

I personally would raise a formal grievance in writing (assuming it's been discussed informally first), send a copy to the manager and HR, a meeting would be called to discuss what you describe as 'bullying', can't do 'wrong from right' through no fault of their own, illness. Also the employee should keep a diary.

[KIP1]

Hi, can anybody advise please, I am a Union rep in a small company (less than 100) and I have a colleague who is currently on a first written warning for a matter unrelated to sickness absence. They recently crossed the trigger point for a formal warning due to their absence levels over the last 12 months, most of which were work-related.. One manager in particular can't wait to escalate from first to final written warning which the employee has challenged as the first written was for something else. Employer is adament that the matters don't have to be related. There seems to have been some selective
re-classification of the absences by the manager in question who I believe has a long standing grudge against the employee, this was a contributory factor in the first written warning.
Can they escalate to a final written for an unrealted matter?
How do we best defend or appeal, on the basis that no hard-working employee chooses to become ill or injured?

Thanks All

K

Hi yes we have sought advicè from the Union, this is something they expect the reps to deal with but as yet have not given a definite response as to whether the company categorically can or cannot escalate to a final written warning for an unrelated matter. I would like to know our definite position before we go back to the company. In practice, it is often quicker to get a reply from this forum, and a broader knowledge base.

[KIP1]

Have you sought advice from the Union?

Hi yes we have sought advicè from the Union, this is something they expect the reps to deal with but as yet have not given a definite response as to whether the company categorically can or cannot escalate to a final written warning for an unrelated matter. I would like to know our definite position before we go back to the company. In practice, it is often quicker to get a reply from this forum, and a broader knowledge base.

[atticus]

Thanks, I understand.

My understanding is that warnings do not need to be for the same type of matter. This is confirmed in the ACAS guidance - echat11 has given the link.

[echat11]

That reminds me of something, the manager and assistant manager (I call them that loosely)did, they got totally blotto at the Christmas do. Most of their co-workers took pictures (not suggesting anybody does this). So every time there was an issue, a disciplinary matter occurred, the co-workers would produce the pictures. If area managers had seen what had happened, they would have been 'toast'. The assistant manager, was kneeling, then he just fell forward flat on his face. Totally bizarre.

[ULA]

Hi KIP1 I will take your post #5 as a compliment to the team here on LegalBeagles for the advice they provide particularly, if you find yourself coming to us to support your work as a union rep on employment law matters.

So the ACAS guidelines do set out that a final written warning can be given for an unrelated issue if there is still a first written warning still on record. However, the other document to look at is the company disciplinary policy, is there anything in there that deals with this point, however if there is not reference directly in the policy the ACAS guidelines are a fall-back for the employer.

My other question is around the absences which you say are for work-related reasons.

Have these been documented in the accident book?
Are they of a similar/repeatable nature in which case has any risk assessment been carried out?
Just wondering if there is the possibility of a health and safety issue in this employee's work environment?
Have other employees working in a similar job had work related absences?

[Ukmicky]

Absences do not have to be related . It’s the number of days that matters for the first stages . Once it get formal and dismissal can be considered the actual causes ,illnesses need to be taken into account.

There however must be a fair process and the process is normally documented so all employee are aware if they have x amount of days off sick over a given period of time they can receive an attendance warning and if the level of sick absence continues after that they can then move onto a formal stage where dismissal can be considered. All stages should be documented.

You say work related illnesses, what is a work related illness ? Are we talking accident at work. An absence that is due to an accident on duty where the employee was not at fault ,will be disregarded by most employers as any dismissal that used such an absence as part of the reason would not go well for the employer if it went to tribunal.

[KIP1]

Hi KIP1 I will take your post #5 as a compliment to the team here on LegalBeagles for the advice they provide particularly, if you find yourself coming to us to support your work as a union rep on employment law matters.

So the ACAS guidelines do set out that a final written warning can be given for an unrelated issue if there is still a first written warning still on record. However, the other document to look at is the company disciplinary policy, is there anything in there that deals with this point, however if there is not reference directly in the policy the ACAS guidelines are a fall-back for the employer.

My other question is around the absences which you say are for work-related reasons.

Have these been documented in the accident book?
Are they of a similar/repeatable nature in which case has any risk assessment been carried out?
Just wondering if there is the possibility of a health and safety issue in this employee's work environment?
Have other employees working in a similar job had work related absences?

Hi ULA, thanks for your reply. Disciplinary policy only states trigger points for warnings.
The incidents have been doocumented and are usually excluded from the sickness scores or counted as 1 day.
They are refusing to do so in this guy's case and are counting all the days -
It's quite a physical job so nanual handling injuries are common.
They generally take H and S matters very seriously but there are issues with bullying and stress at work if particular managers take against someone.
While they might grudgingly acknowledge there are individual problems with working relationships they will not countenance that there is a trend or problem with vindictive management styles
Yes there have been other employees with similar work related absences but these have been scored as one days absence

[KIP1]

Absences do not have to be related . It’s the number of days that matters for the first stages . Once it get formal and dismissal can be considered the actual causes ,illnesses need to be taken into account.

There however must be a fair process and the process is normally documented so all employee are aware if they have x amount of days off sick over a given period of time they can receive an attendance warning and if the level of sick absence continues after that they can then move onto a formal stage where dismissal can be considered. All stages should be documented.

You say work related illnesses, what is a work related illness ? Are we talking accident at work. An absence that is due to an accident on duty where the employee was not at fault ,will be disregarded by most employers as any dismissal that used such an absence as part of the reason would not go well for the employer if it went to tribunal.

Hello UKMICKY thanks for your reply. It was injury at work resulting 4 day absence which they are refusing to count as such, even though reported in line with policy, and a longer period of absence due to work related stress.
It's a useful point to note that a tribunal would take a dim view if dismissal followed this has been reassuring for the member

[ULA]

From your response to my questions there could be an argument for inconsistent application of how work related absences are being counted in the case of this individual. Employers need to be seen to act fair and reasonably, particularly in the case of potential disciplinary action by ensuring a consistency of approach across all employees. If this individual is being treated differently and as a consequence could face a final written warning then in the event of a disciplinary hearing, I suggest you could use this as part of your defence and appeal if it gets to that stage.

Also on the absence for work related stress was there any return to work meeting to establish with the individual the cause and any suggestions of ways to try and improve the situation?