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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44962
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hello I have an appeal to put forward concerning the disciplinary

Customer Question

Hello

I have an appeal to put forward concerning the disciplinary jugement from an interview I had with the shift manager.I have realised that the procedure resulting to the jugement was not followed according to the company policies.just wonder if you can help me get that done and if there is ground for an appeal as a sollicitor.
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. What is your question about this?

Customer :

Hello

Customer :

Hello


I have been disciplined because of absences which were a result of sickness.According to the company policies you get an extended period of 26 weeks during your pre-probationary period for 2 (stage 1)instances of absence and the counselling must be conducted by a team leader.I do not reckon having that meeting.


For 3 instances of absence ( stage 2) which is a final interview of concern you get 26 weeks extended probation period.


I am confused because I have never been called to the office for the first stage(2 instances of absence) which would have resulted with 26 weeks extended probation period.


 


On the contrary I have been interviewed( for the first time) when I reached 3 instances of absence.As a result I got 26 weeks of extended probation period and it is my final interview before the stage3 which will terminate my employment.


 


I have the certainty that the procedure was not followed as it should have. My team leader and manager made the mistake to not follow the procedure according to the company policies.I should have had a meeting with the team leader when I reached 2 absences.That meeting never happened.Why? I do not know.


My questions are:


1.why was I not been told about the “absence management stages. Pre-probation period before?


2.Why I never had that first meeting ( stage 1) with my team leader according to the company absence management policies when I reached 2 instances of absence ?


3.Why the rush to send me towards the STAGE 2 while STAGE 1 was not even conducted according to the company absence management policies?


4.I understand that company policies must be followed by everyone .In this case my team leader and the management have not followed the company policies and are making me pay for their mistakes.I accept that my absences must result in any sort of consequences according to the company policies.I am afraid in this case, the management and team leader did not follow the procedures.If the procedures were followed,I would have been aware of my situation and be more careful.I feel like everything was settle to get rid oof me as soon as an opportunity will be available.


 


I am sending all the letters and company policies about “absence management pre-probation period”.


 

Customer :

How can I attached documents?

Customer :

hello ben are you still there?I need to send some documents just do not know how to do so

Ben Jones :

OK, thank you, XXXXX XXXXX this with me - I will look into this for you, get my response ready and get back to you on here. No need to wait around and you will get an email when I have responded, thank you

Customer :

Hi Ben, I said there are documents I really want you to see which are PDF docs.I just do not know how to send them to you.

Ben Jones :

Hi, sorry was trying to get these documents and have finally managed to do so, can I just check how long you have worked there for?

Customer :

I have worked there sincejuly last year.I got my contract since october 7th

Ben Jones :

and are you facing dismissal or is this just a disciplinary that could result in a warning?

Customer :

This is a disciplinary that could result in dismissal if I have an instance of absence during the 26 weeks extended period.Which is wrong according to the policies (doc am23).According to the absence management policies,when I reached 2 absences I suppose to start my first stage with 26 weeks aextended period as rjugement.That first stage meeting never happened.I do not want to cover my management or team leader mistakes by paying for it.I believe the procedure was faulty from the start.I do not refute the 26 weeks extended period but in this case a mistake has occured from the management.To cover their failure they want me to pay by rushing my case to the final stage.This would have been right if the policy procedure was followed as stated.Here is the document attached.Please pay attention to the second part of the document where there is a circle.

Attachment: 2014-01-19_202858_am23.pdf

Full Size Image

Ben Jones :

ok and what re the reasons for the absence?

Customer :

sickness was the reason for my absence.Unfortunatelly I can not get a note from the doctor because it was mainly something I could treat myself.But I got intouch with the hospital and the doctor guided me on the telephone on what to do.As I said I do not refute the 26 weeks extended period.But I strongly challenge the decision to make it my final stage because I never had a first stage which is wrong according to the company absence management policies.In that case because the procedure was not followed according to the company absence management,I demand to be reinstated to my normal probation period which will end in march instead of the 26 weeks extended period ending in july.They made the mistake.they should know better.

Customer :

I thought I was on the first stage but,surprise surprise it was the final stage.I want you to see the confusion in my mangement :1.on the letter which was sent inviting me to the meeting its said,"stage one interview of concern".Here is the document :

Attachment: 2014-01-19_204957_am22.pdf

Full Size Image
2.Right after the "stage one interview of concern", I received the record of the meeting saying it is :"Record of final interview of concern".Don't you think there is something wrong with that?They have realised their mistakes and to cover themselves I have to pay the price.I think it is wrong.Their responsibility in failling to follow the company absence management procedure has to be establish and my file clear.

Ben Jones :

Ok so you are in the pre-probationary period at present. The policy states that there are 3 Stages, the final of which may result in dismissal. Stage 1 occurs when you have had 2 instances of absence in any rolling 26-week period. So according to your absences, you should have been in Stage 1 after your absences in November. This would have resulted in a counselling session with a Team Leader. After that, if you had any further absences, you would have entered Stage 2. So you would have been at Stage 2 and had a final interview of concern following your absences in January. Even if you had the counselling session, the fact that you had 3 instances in a rolling 26 week period would have placed you on Stage 3 anyway. If you check the policy, the pre-probationary policy does not operate in the same way as the post-probationary one. In the post probationary one you have Stage 1, then you enter a review period and your absence record is reset, so if you have 2 more absences within that period you continue on to the next stage. However, Stage 1 in the pre-probationary period does not operate in the same way – you still get a review period but if you check the requirements for entering Stage 2, you will see that all you need is 3 absences within a 26-week rolling period, not in the review period. So once you entered Stage 1, your absences would not have been reset and the employer could still enter Stage 2 if you had 3 absences in a rolling 26-week period, which can include the original absences that resulted in you going to Stage 1.

Ben Jones :

The main problem you will face here is with your length of service. If you have been continuously employed at your place of work for less than 2 years then your employment rights will unfortunately be somewhat limited. Most importantly, you will not be protected against unfair dismissal. This means that your employer can dismiss you for more or less any reason, and without following a fair procedure, as long as their decision is not based on discriminatory grounds (i.e. because of gender, race, religion, age, a disability, sexual orientation, etc.) or because you were trying to assert any of your statutory rights (e.g. requesting maternity/paternity leave, etc.). if they failed to follow a contractual procedure, then you can seek compensation for breach of contract, for example losses incurred as a result of them not following that procedure but it would not prevent the dismissal unfortunately. So in your case, all they have failed to do is conduct the consultation meeting with a Team Leader. What losses have been incurred as a result of that I am not too sure but I would say in the best case scenario you are probably looking at nominal compensation, for example a few days’ pay to cover the extra time you would have worked there for if they had held that meeting.

Customer :

that is a breach of company policy .

Customer :

not conducting the first stage which is counselling.

Ben Jones :

yes it is but it does not make the dismissal unfair unfortunately

Ben Jones :

if it gets to dismissal

Ben Jones :

but you an of course appeal now

Ben Jones :

because you have not been dismissed yet

Ben Jones :

So you can submit an appeal for being entered into the Final stage - you have the right to appeal if you have been given that chance

Ben Jones :

But if this results in dismissal before you have reached 2 years service with the company, then you cannot challenge that, even if the employer has not followed their sickness policy - and that is because by law you are not protected against unfair dismissal

Customer :

do you think my appeal can result in dismissal?

Customer :

Yes I have been given the chance to appeal.this is why I came to you for help.

Ben Jones :

no, the appeal itself is unlikely to result in dismissal, but they can decide to dismiss you at any point until July 2015 and you will have very few opportunities to challenge any dismissal that may occur

Ben Jones :

So you do have rights t appeal, of course, but it does not guarantee a successful outcome because they can still decide to dismiss whether the appeal is successful or not

Customer :

but it said thatone instance of absence during the review period.Your advice is for me not to put forward an appeal?

Customer :

The appeal is for the final stage to be scraped because of the mistake they made by not following the procedure.

Ben Jones :

the meeting you had was for Stage 2 - this has now completed and you are in Stage 3, where if you have one more instance during the next 26 weeks you could be dismissed. I am not saying you should not appeal, but even if you did, it does not prevent a dismissal from occurring if they really wanted to go that way.

Customer :

I do understand your point.But you do not get to stage 2 without being at stage 1?Why I never had that counselling with team leader?

Ben Jones :

you can actually get to stage 2 even if you had stage 1 counselling - because, stage happens when there are 3 absences within a rolling 26 week period and that can include the absences that led to the stage 1 - so all that has been missed out is the counselling meeting, but even if you had that and you had the absences in January, the employer could have gone to Stage 2

Customer :

listening to you,I feel like there is no point at all going forward with the appeal.I just have to carry on and wait for my dismissal one of these days .I just need a straight forward answer please.

Ben Jones :

I cannot tell you if your employer will dismiss you or not - only they know the answer to that, so I cannot tell you 'do not do this or that because dismissal is inevitable' - dismissal is certainly not guaranteed but I have to advise you that IF it was to happen, then challenging it would be difficult if it happens any time before July 2015. So my job is not to guess what the employer will do because it is just that - a guess. So my place is to tell you - you have the right to appeal and you also have grounds t appeal, so if you want to, you are certainly in a position t appeal what has happened so far. But it will not change your legal position in terms of a potential dismissal, just that I cannot guess whether this will actually happen or not, because only the employers knows if that will happen

Ben Jones :

Is there anything else you wish me to clarify for you please?

Ben Jones :

Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this?

Customer :

I am not conviced by your answer.I actually wonder if you are a sollicitor.I would like my money refunded.

Ben Jones :

I am certainly a solicitor and I specialise in employment law and have done so for years, but there is little I can do about your actual rights, which are very limited in your situation - I do not make the laws unfortunately but that does not mean my answer is wrong, even if it is not what you wanted to hear

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