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taratill
taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6339
Experience:  15 years experience of advising on employment law matters
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My girlfriend has just had a formal warning

Resolved Question:

Hi, my girlfriend has just had a formal warning for legitimate absences from work for sickness last month, also last month 7 days holiday... I would like to create a response to this letter, but need some help. She will be going to the doctor tomorrow to get doctors nots, she did originally attend but doctor said would only give fafter 5 days. I don't think the letter is fair? Can some one look
Submitted: 2 years ago.
Category: Employment Law
Expert:  taratill replied 2 years ago.
Hello my name is ***** ***** I am happy to help you today.
How long has your girlfriend worked there for?
Is it the employer's letter you would like me to look at ?
Customer: replied 2 years ago.

Hi since May 2013, yes i have the letter, i have tied to upload has it come through?

Expert:  taratill replied 2 years ago.
Was your girlfriend invited to a disciplinary hearing before being presented with that letter?
Customer: replied 2 years ago.

Yes an hour after walking into work this morning, they said a meeting would be in an hour. That letter was given straight after...

She legitimately had tonsillitis, and on two occasions actually forced herself into work, and colleagues sent her home...

On the day or two when she never call in till late she physically could not get out of bed after being up all night. Even now still is ill, and has gone in...

Never takes time of usually, and to be honest her job description, hasn't been updated in 3 years and she is doing a lot more than what she should be... Even working from home till 10, doing accounts, and working whilst on annual leave abroad...

They basically as you can probably tell, are not believing her illness and said "if you want to leave just tell us"

Expert:  taratill replied 2 years ago.
Ok at this 'disciplinary hearing' was she given the right to be accompanied by a work colleague or a trade union representative?
Customer: replied 2 years ago.

Hi, no, they basically sent her an internal instant message.attachd?

Expert:  taratill replied 2 years ago.
Ok small employer or not your girlfriends employer has erred procedurally as it is not fair to issue what is effectively a final written warning without follow a properly constituted disciplinary hearing with the right to be accompanied at the hearing by a work colleague or a trade union representative.
There are 2 options either she appeals this decision on procedural grounds, though you should note that if she does this then she is highlighting the problem or she can ignore this, produce this sick note and in the event she were to be dismissed in the future she would be able to claim unfair dismissal on procedural grounds.
You should note that it is not unlawful for an employer to take action against an employee who has unacceptable absence levels (even if those absences are legitimate). An employee can be dismissed on capability grounds fairly for that reason but should be given proper warnings and it would be appropriate for the employer to first gain a medical report to check there is no underlying medical condition causing the absences.
If you have any further questions please do ask. If I have answered your question I would be grateful if you would take the time to rate my answer. Thank you and all the best.
Customer: replied 2 years ago.

Hi thanks for your help. Generally her boss and wife, both in the meeting, are semi friends, so its even more awkward... But now my gf is crying her eyes out worried, what would be her legal stance if she took tomorrow off for instance. She is such a jobsworth usually and never miss work...

Im trying to compile a letter to get this written warning taken away, and technically "1 up" them, but i don't want to tell them about the procedure they missed?

Is there anything i should include in the letter of response, or is it even worth responding?

Expert:  taratill replied 2 years ago.
I would strongly advise she does not take more time off. This will make the situation much worse for her in the long run. On the face of the letter she has received she may be dismissed. Whether it would turn out to be unfair dismissal or not this will cause her more stress.
I'm not sure it is worth responding other than to reiterate that the absences were genuine. Then if she does NEED more time off in the future and is dismissed she can appeal and claim unfair dismissal.
As I said earlier the danger of highlighting the error now is that they will just rectify it by holding a properly constituted meeting.
If she is friendly with the manager perhaps a heart to heart chat is what is required, although I accept that this my be difficult.
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