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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46794
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have been absent from work (I have medical note) and due

Resolved Question:

I have been absent from work (I have medical note) and due to return tomorrow. Yesterday I received letter from Director stating company inviting me for disciplinary meeting Tuesday am for alleged "gross misconduct". Each day of absence I text the director & acting deputy manager to advise of absence. Office phone does not have facility to leave message. They state the "gross misconduct" is due to not adhering to company policy regarding sickness - a telephone call is required. However since I took up the post on 5th May I've not had an induction, not received a staff handbook and with the exception of a days computer training course (which everyone attended) I've had no training/support. The director has had the opportunity to point out my error of texting but chose not to. I feel they are just using this now as an excuse because I've just had to take time off due to a back injury. I feel my ability to continue working for this company almost impossible but I do not wish to have my employment terminated for gross misconduct either. Please help!
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long have you worked there for?
JACUSTOMER-0byp33s2- :

I only started working for this company on 5th May this year

Ben Jones :

Hi, sorry my connection dropped earlier. Can I just get some details on the reasons for your absence please – you state it is a back injury but it is a serious issue, something that you have had for a long time?


 

Customer:

When I attended interview I informed them that I had a prolapsed disc in lower back, which was the reason for leaving front line care in A&E Dept and wanting to use wide range of skills & experience to move into managerial role. I was recalled for a second interview to clarify a couple of issues which included the issue regarding my back. I explained that I would be willing to carry out "a few care calls" as and when we were struggling but it's not something that I wanted to be doing on a regular basis to be kind to my back. Clearly they were happy with this as they offer me the post the following day. However, since offering me the post yet another Coordinator has walked out before I took up the post and as I joined the company a second walked out after less than a week. Due to staffing levels & with no support/training I was left to run the office and resolve all the problems. This resulted in me working 4 weeks before getting a weekend off.

Ben Jones :

Were you aware of the policy that required you to make a phone call?

Customer:

I haven't received an induction or received an employee handbook. I am now aware that outside of office hours you have to telephone the "On-call" phone if you have care calls before getting to office. I was given a memory stick with policies & procedures on but with the dreadful state the business was in I haven't had any time to look at a single policy. Instead I've a t times carried out the roles of three members of staff!

Ben Jones :

Gross misconduct in these circumstances would be very harsh and quite possible unfair. This would need to be something so serious that it justifies your instant dismissal. We are talking about theft from work, violence, serious negligence, placing the company into disrepute, etc. Not following a sickness procedure by simply not calling in is not really gross misconduct – it could be misconduct and you can be issued with a warning but to call it GM is somewhat unreasonable.


 


The issue in your position is that you are not protected against unfair dismissal. If you have been continuously employed at your place of work for less than 2 years then your 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 the dismissal had nothing to do with any of the above exceptions then you would not be able to challenge it and your only protection would be if you were not paid your contractual notice period, because unless you were dismissed for gross misconduct, you would be entitled to receive your contractual notice period. If you did not have a written contract in place you would be entitled to the minimum statutory notice period of 1 week. Your employer would either have to allow you to work that notice period and pay you as normal, or they will have to pay you in lieu of notice.


 


There is a possibility you could try and argue your condition was a disability but you must be able to satisfy the legal test for disability. In the legal sense of the word, disability can have a broad meaning and there is no single list of medical conditions that qualify. Instead, to establish whether a person is disabled, they need to show that they meet the legal definition of a ‘disability’.


 


The Equality Act 2010 defines a disability as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.


 


I will break this definition down:



  • Physical or mental impairment – this can include nearly any medical condition;

  • Substantial effect – the effect must be more than minor or trivial;

  • Long-term - the effect of the impairment must either have lasted or be likely to last for at least 12 months;

  • Normal day-to-day activities – these could include anything considered ‘normal’ in a person's normal daily routine (e.g. walking, driving, speaking, eating, washing, etc.)


 


If a person satisfies the above criteria, they will be classified as being disabled and will have automatic protection against discrimination, which means that they must not be treated unfavourably because of their disability. So if you believe that the reason for the dismissal was to do with this rather than your conduct, it could amount to discrimination.


 


You could instead try and discuss this with the employer and state that it is clear the relationship has broken down and that you will be parting ways but ask to do so in an amicable way, where you are just allowed to walk away and they do not tarnish your reputation with unreasonable allegations like GM.

Customer:

I found out on Thursday that the condition with my back is worse than I had realised. Not only do I have a prolapse disc, the lumbar vertebrae are all thinning and showing deterioration and there is twisting of the spine too. This can be managed by pain relief but when at it's worse I can't even lift a half filled kettle without having a spasm.

Customer:

I agree that it is probably best that I just suggest to the company that I leave without attending the meeting on Tuesday as clearly no matter what I state in my defence (and part of their "evidence" is incorrect/inadmissible) they have an agenda which is to terminate my employment.

Ben Jones :

Whether your condition is a disability or not would be something decided by a tribunal, if it ever gets that far. If it is not, then as mentioned your rights will be somewhat limited due to you not yet having protection against unfair dismissal. It is clear that you do not want to work there and that they no longer want you either so it is best to try and draw a line to this amicably and without much fuss. You will just have to discuss this with them and propose this option to them and see how they respond - hopefully they would not like to use up too much of their time and resources pursuing this further so they may just agree to it

Customer:

Ok thank you for your advice

Ben Jones :

you are most welcome

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46794
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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