Greivance procedure help

[Claireg]

Hi, I joined this forum to get help with information as I'm helping a friend with a greivance procedure following dismissal for capability due to medical reasons.
On Jan 20th my friend Anthony had a fall at home and hurt his back. He is a removal man for a small company with 2 other employees. He has been there for past 11 years and also resided at business address, the other two employees also live there.
On 21st Jan Anthony went to work despite having a bad back as he did not want to let the boss down on short notice.
On morning of 22nd he was in agony so had to ring an ambulance, another employee helped him in ambulance and told employer of his absence. That evening Anthony returned home and told him boss he had a fractured vertebrae and showed him the discharge note. The employer told Anthony they had a big job on on Monday 25th so would still require him to come in. Anthony reluctantly agreed but informed him that he would only work to best of his ability.
He works the Monday but on Tuesday 26th he can't get out of bed so informs employer of this and says he won't be back until he is in less pain.
On 29th Jan Anthony visits employer and gives him a self certificate, his employer hands him back a pay packet and a letter, he opens the letter at home and it read " I have had to lay Mr Anthony ***** off work as of today's date, because he is unable to do his job as a removals operative any longer, due to his medical condition" dated 29th Jan.
I sent a greviance letter on 14th March raising greivance: a) why he was instantly dismissed without any notice b) what medical evidence/investigation he used to determine he is no longer capable c) he has not made any reasonable suggestions to whether he can do any light duties (on days where there was no removals he used to clean lorries, so light mechanics, and care taking of property) despite this tho he has asked on a couple of occasions for him to pop in and fix lights etc but has refused 4) he only had a weeks holiday so holiday paid 5) a statement of salary inc benefits
The employer replied inviting to meeting and told him he could have union rep or fellow employee (no union and other employee not a brain cell between them)
I replied first informing him he could not do this date as was away but offered several other date, and also asked on his behalf if I could attend as a reasonable adjustment(ACAS advised me to ask for this) Anthony is dyslexic so cannot read well, he is also on loss of meds for asthma, Copd, hiatus hernia, and been on antidepressants for past 3 weeks due to all stress, and also strong painkillers for back pain.
I have just received letter back refusing me to come and stating that it can only be a union rep or fellow employee. I'm worried that he is going to be bullied and may lose his temper so don't know what to do?
I also need to add that Anthony doesn't live there anymore, employer accepted housing benefit paid directly to him but there was a shortfall of £23 a week, Anthonys benefits took 7 weeks to come thru and after constant nagging on arrival and departure of property daily he couldn't take anymore so I wrote to employer giving a weeks notice and settled up by cheque, the following day the 6ft access gate had padlocks on it so we had to scale these and remove entire bolts with padlocks to remove his possessions in the middle of the night twice that week but was easier than confrontation.
Sorry for the long post but I'm doing as much as I can without any knowledge other than hours on google but don't know what to do for best about meeting. I have also asked twice for copy of his greivance procedure as Anthony never had these or any contracts as employer is "old school" the response I got in writing was "I would like to point out that it is not a legal requirement to have a greivance procedure in place"
Any help appreciated
Claire

[Kati]

Re: Greivance procedure help

tagging [MENTION=26290]mariefab[/MENTION] for you (she's good with employment issues ) xx

[Claireg]

Re: Greivance procedure help

tagging [MENTION=26290]mariefab[/MENTION] for you (she's good with employment issues ) xx

Thank you

[Ripped-Off]

Re: Greivance procedure help

I have just received letter back refusing me to come and stating that it can only be a union rep or fellow employee. I'm worried that he is going to be bullied and may lose his temper so don't know what to do?

This surely only applies where the employee still has a job. As your friend has already been sacked does it really make any difference, especially as there is no grievance procedure in place anyway? Furthermore, if he is dyslexic and that is classed as a 'disability' then it is more of a reason for you to accompany him. It is noteworthy that the ACAS Grievance Manual says:

Workers whose employers fail to comply with a reasonable request to be accompanied may present a complaint to an employment tribunal. Workers may also complain to a tribunal if employers fail to re-arrange a hearing to a reasonable date proposed by the worker when a companion cannot attend on the date originally proposed. The tribunal may order compensation of up to two weeks’ pay.

The ACAS Code of Practice on Discipline and Grievance Procedure is not mandatory. However, in any tribunal proceedings the ACAS Code of Practice is admissible in evidence; and any of its provisions which are relevant to any question arising in the proceedings will be taken into account.

[Claireg]

Re: Greivance procedure help

This surely only applies where the employee still has a job. As your friend has already been sacked does it really make any difference, especially as there is no grievance procedure in place anyway? Furthermore, if he is dyslexic and that is classed as a 'disability' then it is more of a reason for you to accompany him. It is noteworthy that the ACAS Grievance Manual says:

Workers whose employers fail to comply with a reasonable request to be accompanied may present a complaint to an employment tribunal. Workers may also complain to a tribunal if employers fail to re-arrange a hearing to a reasonable date proposed by the worker when a companion cannot attend on the date originally proposed. The tribunal may order compensation of up to two weeks’ pay.

The ACAS Code of Practice on Discipline and Grievance Procedure is not mandatory. However, in any tribunal proceedings the ACAS Code of Practice is admissible in evidence; and any of its provisions which are relevant to any question arising in the proceedings will be taken into account.

Thanks Ripped-Off. That's the way I see it too but how can I enforce this. I can't actually walk into the premises knowing that he won't accept me there and am likely to get thrown out can I. If Anthony doesn't go it looks bad on him but if he does go alone then he is likely to agree to anything or get aggressive even though he hasn't done anything wrong. It's all very well what is said in the ACAS guide and how the tribunal will see it but it does not help him with the meeting here and now. Meeting is on Thursday. Claire

[Ripped-Off]

Re: Greivance procedure help

If I were you I would go and see an employment solicitor. From what you have described you may have a case for unfair dismissal, particularly with 11 years service. You should consider cancelling your appointment until you have obtained legal advice or have spoken with the Acas Helpline on 0300 123 1100. You could also inform the employer of your reasons for doing so. That may or may not alter their attitude towards you and their refusal to allow you to attend.

You may have such a strong case that a solicitor will take your case on a no win no fee arrangement.

[Openlaw15]

Re: Greivance procedure help

Hi, I joined this forum to get help with information as I'm helping a friend with a grievance procedure following dismissal for capability due to medical reasons.

On Jan 20th my friend Anthony had a fall at home andhurt his back. He is a removal man for a small company with 2 other employees. He has been there for past 11 years and also resided at business address, the other two employees also live there. On 21st Jan Anthony went to work despite having a bad back as he did not want to let the boss down on short notice. On morning of 22nd he was in agony so had to ring an ambulance, another employee helped him in ambulance and told employer of his absence. That evening Anthony returned home and told him boss he had a fractured vertebrae and showed him the discharge note. The employer told Anthony they had a big job on on Monday 25th so would still require him to come in. Anthony reluctantly agreed but informed him that he would only work to best of his ability.

He works the Monday but on Tuesday 26th he can't get out of bed so informs employer of this and says he won't be back until he is in less pain.
On 29th Jan Anthony visits employer and gives him a self certificate, his employer hands him back a pay packet and a letter, he opens the letter at home and it read " I have had to lay Mr Anthony ***** off work as of today's date, because he is unable to do his job as a removals operative any longer, due to his medical condition" dated 29th Jan.

I sent a grievance letter on 14th March raising greivance: a) why he was instantly dismissed without any notice b) what medical evidence/investigation he used to determine he is no longer capable c) he has not made any reasonable suggestions to whether he can do any light duties (on days where there was no removals he used to clean lorries, so light mechanics, and care taking of property) despite this tho he has asked on a couple of occasions for him to pop in and fix lights etc but has refused 4) he only had a weeks holiday so holiday paid 5) a statement of salary inc benefits

The employer replied inviting to meeting and told him he could have union rep or fellow employee (no union and other employee not a brain cell between them). I replied first informing him he could not do this date as was away but offered several other date, and also asked on his behalf if I could attend as a reasonable adjustment(ACAS advised me to ask for this) Anthony is dyslexic so cannot read well, he is also on loss of meds for asthma, Copd, hiatus hernia, and been on antidepressants for past 3 weeks due to all stress, and also strong painkillers for back pain.

"I have just received letter back refusing me to come and stating that it can only be a union rep or fellow employee. I'm worried that he is going to be bullied and may lose his temper so don't know what to do? "

This is wrong information, a friend has the right to accompany the employee at any grievance meeting, any disciplinary, any appeal.. Call up ACAS to make sure. However a better argument is to say as he is dyslexic he will have problems thinking on his feet whilst dealing with any questions posed or organising his thoughts, or accessing long term store memory: Dyslexia Institute 1989, in addition to his inability to represent himself owing to his problems especially his anxious state being worsened through his asthma. Collectively he cannot perform owing to his dyslexia and likely his anxious state in a formal type setting, so will require you, as his friend to assist him pursuant to the Equality Act. The employer is under legal responsibility (duty) to make reasonable adjustments and your assistance is your view of a reasonable adjustment. You can also speak on his behalf but make sure any questions that are directed to him, that you don't interrupt. If you think your friend is struggling, you take over.

"I also need to add that Anthony doesn't live there anymore, employer accepted housing benefit paid directly to him but there was a shortfall of £23 a week, Anthonys benefits took 7 weeks to come thru and after constant nagging on arrival and departure of property daily he couldn't take anymore so I wrote to employer giving a weeks notice and settled up by cheque, the following day the 6ft access gate had padlocks on it so we had to scale these and remove entire bolts with padlocks to remove his possessions in the middle of the night twice that week but was easier than confrontation.

Sorry for the long post but I'm doing as much as I can without any knowledge other than hours on google but don't know what to do for best about meeting. I have also asked twice for copy of his greivance procedure as Anthony never had these or any contracts as employer is "old school" the response I got in writing was "I would like to point out that it is not a legal requirement to have a greivance procedure in place"
Any help appreciated
Claire

Hi Claire, please see my comments.

[Claireg]

Re: Greivance procedure help

Cab first called ACAS and they were told to just tell him I am coming and go. I rung them again today and was told that if an employer won't make a reasonable adjustment and let me come then I can't attend, it doesn't look good on him but there is nothing we can do

[Openlaw15]

Re: Greivance procedure help

Cab first called ACAS and they were told to just tell him I am coming and go. I rung them again today and was told that if an employer won't make a reasonable adjustment and let me come then I can't attend, it doesn't look good on him but there is nothing we can do

Claire, CAB are not legal professionals. They wouldn't know equality law if it hit them square in the face, but to be fair they do their best. Equality law is complex. Say to the employer about him being dyslexic, as above. Also remind them of the Equality Act, as above. Look for the company's grievance procedure. The employer cannot just sack someone because they feel like it. I have also studied negligence law as well as the rest of a law degree, so I know what it is reasonable and what's not. If this grievance fails, he should appeal it too to someone higher in the company where possible. It should be 1) grievance and investigation, 2) Appeal, 3) Tribunal (if necessary).

[Claireg]

Re: Greivance procedure help

I have asked for his greivance procedure twice and last letter he replied 'it is not a legal requirement to have a greivance procedure' ACAS said it that case he would have to follow the statutory procedure. Thank you for mentioning the Equality Act as after many hours googling I came across this and it is my understanding that he should allow me to come as dyslexia is a disability that come under the act.
I have not referred to this in any correspondence though as cab/ACAS never mentioned it and I'm not confident that I'm correct.
It's my understanding that after this meeting we don't have to appeal, we can start the ACAS early conciliation.
Thank you very very much by the way. Claire

[Openlaw15]

Re: Greivance procedure help

I have asked for his greivance procedure twice and last letter he replied 'it is not a legal requirement to have a greivance procedure' ACAS said it that case he would have to follow the statutory procedure. Thank you for mentioning the Equality Act as after many hours googling I came across this and it is my understanding that he should allow me to come as dyslexia is a disability that come under the act.
I have not referred to this in any correspondence though as cab/ACAS never mentioned it and I'm not confident that I'm correct.
It's my understanding that after this meeting we don't have to appeal, we can start the ACAS early conciliation.
Thank you very very much by the way. Claire

Claire, dyslexia is a congenital (ie born with) condition and is likely to be a significant impediment to his normal life (when compared with someone who doesn't have his dyslexia), and is likely to be permanent, ie there is no known cure. In my view it's likely his dyslexia is a disability therefore for the Equality Act purposes. Do you have access to his psych ed (ie educational psychologist) report, where was his dyslexia diagnosed, does he have formal psyche ed report? As he has been there for 11 years he possibly has a claim at a tribunal for unfair dismissal. Normally,claims for disability discrimination must be made within 3 months of leaving or when last incident of discrimination occurs. The employer's defence is that it is only a small company and so cannot afford to keep someone in employ where their back has been hurt. How long is he likely to be off work with his back injury? 11 years is a good record to stay with any one employer so your friend has this in his favour. Sacking someone because they hurt their back is unreasonable conduct. The employer could have brought someone in temporary to cover your friend's work tasks. The employer also could have given him alternative duties too, ie cleaning/ maintaining vehicles, other etc. It also seems the employer has not adhered to its own grievance policies, which is to your friend's favour.

[Claireg]

Re: Greivance procedure help

Anthony is 53 and was diagnosed at school in a different county. I don't know if it's on medical records but his gp would definately have no problem confirming this as in the last 9 months he has had cancer scares and all kind of diagnoses ie: hiatus hernia, asthma, Copd and had op to remove blockage to throat as difficultly swallowing, and this all without a day off sick (operation was after termination) I have done all relevant paperwork for this as he is unable.
Our free half hour solicitors appt went well and with his last day of work being 25th Jan and his termination date being 29th Jan the solicitor told us that he has a very good chance of unfair dismissal on grounds that no medical investigation has taken place to acknowledge his capability.
The employer has had cover but we know this through discussions with another employee and that he is paying him cash in hand. I have this conversation recorded on my phone without any knowledge of the employer. I know it's not right but nor is anything the employer has done. I had not told anybody til now of the recording.
A week after the termination Anthony was asked to come in and fix lights on one of the lorries and also a week later help move a 10ft fish tank and he would pay him cash, he refused this obviously but I have no proof that these conversations happened.

[Openlaw15]

Re: Greivance procedure help

Anthony is 53 and was diagnosed at school in a different county. I don't know if it's on medical records but his gp would definately have no problem confirming this as in the last 9 months he has had cancer scares and all kind of diagnoses ie: hiatus hernia, asthma, Copd and had op to remove blockage to throat as difficultly swallowing, and this all without a day off sick (operation was after termination) I have done all relevant paperwork for this as he is unable.
Our free half hour solicitors appt went well and with his last day of work being 25th Jan and his termination date being 29th Jan the solicitor told us that he has a very good chance of unfair dismissal on grounds that no medical investigation has taken place to acknowledge his capability.
The employer has had cover but we know this through discussions with another employee and that he is paying him cash in hand. I have this conversation recorded on my phone without any knowledge of the employer. I know it's not right but nor is anything the employer has done. I had not told anybody til now of the recording.
A week after the termination Anthony was asked to come in and fix lights on one of the lorries and also a week later help move a 10ft fish tank and he would pay him cash, he refused this obviously but I have no proof that these conversations happened.

What remedy does Anthony want? Does he want his job back? I believe secret recordings can be made so in principle they are technically legal/ permissible (admissible) in a tribunal albeit the tribunal would rather you didn't. It is illegal to pay someone off the books, ie in their hand. Only use this material (the recordings) if absolutely necessary...as the employer could argue it's improper conduct by the employee's friend/ representative. The tribunal has the power to make a costs' orders against the employer, employee, any lawyer. However, the good news is that these are relatively rare albeit still not unheard of. It is generally about the conduct prior to and during the tribunal hearing. Be cautious is my advice. If there is no proof that Anthony was asked to also receive pay in hand (off the books) it could be relied on as hearsay evidence. The fact you have proof that the employer has already paid someone in hand is not too remote of a stretch therefore for Anthony's off the books offer of work.

[Claireg]

Re: Greivance procedure help

He just wants answers to why he was treated like that, and he wants employer to treat other employees better in the future. Managed to find a rep so problem solved. Thank you for all your advice

[Nomoneynoproblem]

Re: Greivance procedure help

Hi Claireg


Out of interest what may you decide to go down the Grievances route. From what I have read thus far this looks like an unfair dismissal case. Yes the employer can refuse your attendance at the meeting as it's not a statutory right. The best thing to do is to prime Anthony for the meeting after all if this went to a Tribunal I am 100% certain they will find in Anthony's favour. The meeting needs to be treated as an appeal meeting following dismissal. It's is highly unlikely that the employer is going to change his mind. Anthony will then need to make a decision if wants to head to a Tribunal given the cost involved.

I hope this helps.

Regards

NMNP