Investigation whilst signed off sick

[Jentom]

Hi,
I have been signed off work now for 6 weeks ago. 2 weeks ago my employer placed me under investigation for gross misconduct at work. Whilst I am still medically signed off work sick am I legally obliged to attend this interview? Additionally I have handed in my resignation and will not be returning to work there.

[charitynjw]

Re: Investigation whilst signed off sick

Hi Jentom, & welcome to Legal Beagles.

[Eloise01]

Re: Investigation whilst signed off sick

You are obliged to attend whilst signed off sick unless your GP specifically advises that you are not fit to attend any such meetings - a fit note relates to not being able to carry out your normal duties and being under investigation is not a normal duty. Can I take it that you are in fact guilty of the gross misconduct that you have been accused of? Because if you are not then resigning and refusing to co-operate is tantamount to a confession and that is what potential employers in the future are likely to conclude.

[Jentom]

Re: Investigation whilst signed off sick

There is a criminal investigation going on too and I would rather that had no impact to be honest. It is not a straightforward situation. If I have resigned and am not returning to the establishment I thought that I would be able to not attend. I am signed off due to work related stress which dates back before this. They are ignoring that issue though. And that issue has initiated the other

[leclerc]

Re: Investigation whilst signed off sick

There is a criminal investigation going on too and I would rather that had no impact to be honest. It is not a straightforward situation. If I have resigned and am not returning to the establishment I thought that I would be able to not attend. I am signed off due to work related stress which dates back before this. They are ignoring that issue though. And that issue has initiated the other

Even resigning does not mean that they cannot follow through with the investigation and onto dismissing you from the job.

[jon1965]

Re: Investigation whilst signed off sick

Jentom
Hard as it is my advice would be on damage limitation. Been there done that got that T shirt
I do not know what the investigations cover (criminal and work related) but it would be a fair to say that you could be seen as avoiding the issues by not attending.
have you called the ACAS helpline , or indeed looked at the ACAS codes of conduct.

How long have you worked there?

[Eloise01]

Re: Investigation whilst signed off sick

There is a criminal investigation going on too and I would rather that had no impact to be honest. It is not a straightforward situation. If I have resigned and am not returning to the establishment I thought that I would be able to not attend. I am signed off due to work related stress which dates back before this. They are ignoring that issue though. And that issue has initiated the other

And so are you ignoring the issue! You are required by law and contract to serve notice and any diosciplinary process can continue during your notice period. Being signed off sick does not prevent that from happening and it is not in your best interests to bury your head in the sand. If you are going to refuse to co-operate then your GP must provide a statement to the employer saying that it would be detrimental to your health to attend any such meetings. And even that does not prevent them from going ahead without you. Simply ignoring things is not going to make them go away however - they are still there. They will be on your references. They will be disclosed. Whatever happens about criminal proceedings. Resigning doesn't make anything stop or go away. If that is ok by you, then simply refuse to co-operate. But "no impact" is not an option!

[PlanB]

Re: Investigation whilst signed off sick

This is not my area, but could the OP attend the interview and offer "No Comment" answers to any questions which might incriminate him if there is the potential for criminal proceedings at a later date? It would be a pity to hand the employer evidence on a plate which could end up in a Witness Statement further down the line especially if the employee didn't have legal representation with him during the interview.

[jon1965]

Re: Investigation whilst signed off sick

Very good idea Plan B
Remember should this become a criminal charge, anything you admit during a disciplinary will be used against you by the police, but it will also be twisted to show you in the worst possible light

[PlanB]

Re: Investigation whilst signed off sick

should this become a criminal charge, anything you admit during a disciplinary will be used against you by the police

That was my point. I understood the OP to say that he doesn't want to attend the interview because of a criminal investigation running in parallel in case he shoots himself in the foot. Admitting to doing something he did/didn't do while under stress is a far bigger worry than whether he's going to get a bad job reference by refusing to attend.

Could the employer be using the opportunity to get a confession and a conviction rather than as a regular disciplinary interview. If so then I would say that is taking advantage of the employee's legal right to remain silent when questioned :nono:

[bluebottle]

Re: Investigation whilst signed off sick

The managing director of a large company recently told me that there are two things guaranteed to lead to the downfall of a business, these being health and safety and HR. Whilst employers may only need Reasonable Belief, in respect of criminal acts in the workplace, it is a dangerous precedent upon which to accuse someone of committing a criminal act. The downside of it is that if an employer or their HR advisers get in wrong, or fabricate allegations or omit pertinent information for any reason, the consequences for the employer and/or the business can be devastating. Civil damages for wrongful or malicious allegations of criminal conduct can be and often are substantial and quite rightly so. The police can also take action for Making A False Report, Wasteful Employment of Police and, in a number of cases, have pursued prosecutions for Perverting the Course of Justice against those who make allegations which are false or are subsequently found to be false in any way.

I endured bullying of the worst kind from my employer, when I first went down with Fibromyalgia, who was demanding I attend meetings both my GP and an Occupational Health doctor, engaged by my employer, told me and my employer I was in no fit state to attend or participate in. Rather than follow the letter of the law, my employer engaged a so-called HR consultant to make allegations against me which neither the employer or HR consultant were able to substantiate when challenged.

I have said this before and I will say it again that Employment Law, as it currently stands, needs tearing up and completely rewriting so that it is fair to ALL parties involved, not the current farce of effectively allowing an employer to do what they like with impunity.

[Eloise01]

Re: Investigation whilst signed off sick

This is not my area, but could the OP attend the interview and offer "No Comment" answers to any questions which might incriminate him if there is the potential for criminal proceedings at a later date? It would be a pity to hand the employer evidence on a plate which could end up in a Witness Statement further down the line especially if the employee didn't have legal representation with him during the interview.

They certainly can do that as an alternative to a GP's note, yes. It probably doesn't help them much though. The real crux of the matter here is - did the OP do it? We don't need to know what they did, but knowing whether they did it informs what is the best answer is. I can only assume that they did, and if there is a police investigation going on into the same matter (which is hinted at but not 100% clear) then regardless of what the outcome of that is, dismissal is likely anyway. My assumption is based, by the way, on the fact that the OP resigned, which is generally an indicator. If they didn't do it they need to say so NOW! Because there is a limited window of opportunity to do anything about the resignation if they are innocent.

[bluebottle]

Re: Investigation whilst signed off sick

If I may make an observation, one of the police forces I served with was responsible for policing areas to which the general public do not normally have access. This often involved us becoming involved in investigating allegations of criminal acts in the workplace. I have come across cases, not dissimilar to the OP's case, where someone has been accused of criminal activity whilst they are off sick. In a few cases, it was proven the person involved was using sick leave as a smokescreen to avoid a workplace investigation. However, in a number of cases, it was found that those making the allegations were bullying the person they were accusing and it was bullying that was most insidious. It is not uncommon for those making accusations to be using them as a tactic to divert attention away from offences they are committing themselves.

If the OP is innocent of any wrongdoing, Eloise's advice to say so now should not be ignored and should be acted upon.

[Eloise01]

Re: Investigation whilst signed off sick

If I may make an observation, one of the police forces I served with was responsible for policing areas to which the general public do not normally have access. This often involved us becoming involved in investigating allegations of criminal acts in the workplace. I have come across cases, not dissimilar to the OP's case, where someone has been accused of criminal activity whilst they are off sick. In a few cases, it was proven the person involved was using sick leave as a smokescreen to avoid a workplace investigation. However, in a number of cases, it was found that those making the allegations were bullying the person they were accusing and it was bullying that was most insidious. It is not uncommon for those making accusations to be using them as a tactic to divert attention away from offences they are committing themselves.

If the OP is innocent of any wrongdoing, Eloise's advice to say so now should not be ignored and should be acted upon.

I do agree. But I would have to say, and with substantial experience of workplaces, that whilst what you say is true, going off sick is commonly the response of people who are guilty - not in a few cases! And that has always been why I advise against it unless absolutely necessary. If you are guilty it does absolutely nothing for you except wind up the employer even more; and if you aren't the best thing to do is get it over with because if the employer is going to dismiss, the quicker it is over with then the quicker we can move to tribunal. Just like resigning, going off sick makes you look guilty, even when you may not be. It may not be fair that people make such assumptions, but this is the real world and my experience is that in the real world, head on is the only way to deal with these sorts of situations. If you haven't done something, then fighting is the only possible way you can prevail. Like anything else, it isn't guaranteed, but quitting definitely isn't!

[bluebottle]

Re: Investigation whilst signed off sick

I can only go by the cases I have had dealings with, Eloise. In my particular case, it has now become apparent the person who was making the demands for me to attend meetings, despite medical professionals telling them otherwise - My GP threatened to report my employers as the FMS was compromising my breathing and the level of fatigue was so bad, being confined to bed for days on end was not uncommon - took the wrong view there was nothing wrong with me. It is also becoming clear the same person lied to senior management and, in all probability, suppressed OH reports, thereby causing me to suffer financial loss as a result.

Turning back to cases similar to the OP's, in my experience, for every employer I have had dealings with, as a policeman, where they have made an allegation of criminal conduct against an employee which has proven to be true, far more have made such allegations as a means of, for example, avoiding payment of redundancy pay. It is a pity that honest employers are outnumbered by those who can be tactfully described as "less than reputable". There are also those employers who pay low wages and are illegally and unfairly subsidised by the taxpayer through the benefits systems. There needs to be a crackdown on the less than reputable employers. Honest employers need to be encouraged and held up as examples of good practice.