Problem regarding disciplinary proceedings regarding absence.

ncmc

Hi all, I am looking for advice on a problem my husband is having at work. It is quite specific, so I am finding it hard to find the relevant information online.

My husband has crohns decease, it is fairly debilitating. He can be fine for months on end and then end up in hospital for two weeks. He has been in his job for 7 years, and told them when he took the job, that he had this illness.

He has been suffering with it quite badly for the last few years; I would say he misses on average 4 weeks a year because of crohns, quite often he would be in hospital. He is always certified and would normally take a few days or a week together rather than a day here and there. He is an excellent worker when he is in full health, but when his crohns is flaring up; he admits his work would suffer slightly. He is a very loyal worker, too loyal sometimes; he has gone in to work when most people would be off.

He was called into a disciplinary meeting this morning about his absence and his capability to work. He basically told them that his illness is a disability, that they were aware of it when they hired him and that his absence is always necessary and certified and that his loyalty and work ethic cannot be questioned. They have said that they aren’t giving him a warning over his illness, but are saying that there is a capability to work clause in his contract and that he is not able to perform his job to the full. I think this sounds like a very sketchy reason, as the reason his performance is down, is due to his illness!

Basically, they have given him time to think about it and come back to them. I feel he should not accept the warning as they are discriminating against him because of his illness, I also feel that if he accepts a warning, he is admitting culpability and that gives them an avenue to fire him if his attendance doesn’t improve.

He wants to accept the warning and hope that his attendance is good enough in the next six months that they won’t have an opportunity to give him another warning. He feels that if he refuses the warning, they can start to pull him on every little thing and they will eventually get a reason to fire him. I think that is constructive dismissal and if they go down that route, we could take a legal case against them.

I should add that my brother in law is a solicitor and he feels that he should absolutely not accept a warning and thus admit culpability. But he is not local to us, and we won’t get a chance to meet with him before the next meeting. My husband wants to continue on working for them. Most of the time he likes his job and is very good at it. Obviously he would find it nearly impossible to find another job with his health in the current climate.

I would love some advice on this situation and maybe someone could point me in the direction of his rights in a case like this? I am assuming that the law of the land would usurp this ‘capability clause’ in his contract? He would like to have his rights in his hand before he makes his decision and meets them again.

bbam

Sorry to hear of the problem...
Firstly I'd doubt he can refuse the warning, he may object or refuse to sign it but it will be there anyway... I've gotten other managers to co-sign that it was delivered when employees refused to sign..

Absence is absence, I don't mean to sound blunt but they can pull him up on absence, certified absence is still absence and he can be disciplined for it...

Has he any written proof that they discussed his illness pre-employment...

Also you intherchange the words illness/disability. I appreciate there can be a very fine line, do find out if Crohns is listed as a disability, I don't think it is but I could be wrong...

I'd advise ensuring you both understand the whole attendance/disciplinary process where he works and ensure to fullfil all requirments on time every time..
Try to sit down with his manager and see if a compromise can be found, working time back or whatever seems reasonable...


As my old employer used to say...
"your medical cert explains your absence, but it doesn't excuse it"

Eoin

This might sound unsympathetic, but here are the details.

If it's a legally recognised disability, then the employer has to make reasonable allowances. This could be a change of duties, extra facilities in the office - but it can't be an unreasonable burden on the company. But at some stage he has to be able to do the job he's being paid for.

If it's not considered a disability, then they are most likely absolutely well within their rights to let him go if there is continued pattern of absence that prevents him from doing the job he has been contracted to do.

they will eventually get a reason to fire him. I think that is constructive dismissal and if they go down that route, we could take a legal case against them.

Constructive dismissal is when the employee resigns because he or she feels there is no other choice. You're talking about unfair dismissal, as it would be the employer taking the action. In the first case, it's up to the employee to prove, in the latter the onus is on the employer.

I should add that my brother in law is a solicitor and he feels that he should absolutely not accept a warning and thus admit culpability.

Absenteeism should always be handled through the disciplinary procedures, even though it might seem like it's implying that it's a deliberate thing.

He is entitled to a witness at these proceedings, but the choice must be agreed with the company. So a solicitor might not be allowed.

mod note: I think he should seek professional legal advice before he goes in to the next meeting. It would be foolish to take anything here as fact.

gerrycollins

He also has the right to appeal the warning.

Is the warning going to be a final written warning or just a "bold boy" kinda verbal warning?

How long has his absence been this way? The full 7 years he has worked there?

If they have recently only started to discipline his absence yet his absence has been happening throughout his time there it could be argued that their actions are in contravention to the ideals behind the disciplinary process and their action of warning is flawed to say the least.

If this is their first action into the matter then the best/worst they could be entitled to do is "work" with the employee to help improve their absence and make allowances where mitigating factors exist.