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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 48196
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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hi there, I was involve in a car accident in July 2013 and

Resolved Question:

hi there,

I was involve in a car accident in July 2013 and unfortunately in September my injuries to my neck, right arm/shoulder and lower back got worse. I have been signed off work for 4 months pending various medical investigations.

I am a lecturer at things at work need to be adjusted especially my work station area. On the 27th January I had my first work review with my union present. I am hoping to return back to work on the 25th Feb despite have MSK issues.

I received the stage 1 report this morning and I am very disappointed that my employers have issued me with a stage one written warning with the option to appeal this in writing in the next 5 days.

I feel that this is totally unfair it is hard enough dealing with this issues that I am currently having unfortunately I did not ask to be involve in a car accident and I certainly did not ask to be away from work for so long.

In the 9 years that I have worked for this organisation I can honestly count on one hand the amount of sick days I have had.

I was wondering what you advice on this would be!

I look forward to hearing from you soon.

Georgia
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

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

Ben Jones :

Are they following a specific workplace policy in relation to this?

Customer:

hi there,

Customer:

Unfortunately I was involved in a car accident in July 2013 my injuries become very severe in Sept 2013 and I have been signed off work since then pending medical investigations in my neck, right shoulder and lower back.

Customer:

I am full-time college lecturer, I visited occupational health in Nov and they confirmed to me at that stage that I was unfit for work. Occupational health has also recommended certain adjustments that need to be put in place within my work station at home /work.

Customer:

On the 27th January I attended my work review meeting with my union rep present. Unfortunately this morning I received the written report and I am so upset and disappointed that my employers have issued me with a stage one written warning which remains on my file for 12 months. I have the right to appeal this in writing in the next 5 days.

Customer:

I did not ask to be in a car accident and I certainly didn't ask to be away from work for this long I think it is unreasonable of them to add this extra pressure.

Ben Jones :

thank you but I was wondering if in issuing you with the Stage 1, they are following a specific workplace policy that says it is what will happen after a number of absences for example?

Customer:

I am hoping to return to work on the 25th Feb despite the rehabilitation and investigations are still on-going.

Ben Jones :

ok let me get my response ready please

Customer:

If you would like to see a copy of the letter I be happy to send this through as an attachment.

Customer:

I look forward to hearing from you soon.

Customer:

Kind regards,

Customer:

Georgia

Ben Jones :

If you have been off work due to sickness or an injury, then the employer may still decide to take formal disciplinary or capability action as a result and follow a process that results in you being issued with a warning in relation to that absence. There is no specific law that says how long someone has to be absent for before the employer can discipline them and it is largely down to them to establish a clear policy that deals with this and to apply it fairly and consistently.


 


So the simple fact you are off work, officially signed off and with a genuine reason to be off does not make you immune from any formal action and in instances where you are off long-term your employer may even look to dismiss you, but this is not something you should be worried about here.


 


Employers would often use triggers for taking formal action for sickness absence, such as a number of sickness occurrences in a specified period or a minimum period of a long-term absence. If the trigger is hit then they would take formal action, although it should not be as simple as just issuing you with a warning and they must still follow a fair procedure, such as investigating the nature of the illness as well as the reasons behind it, what can be done to assist you in terms of making adjustments or changes, consistency in terms of similar action being taken against others and so on.


 


So whilst I completely understand your frustration at being subjected to this, the employer’s actions are not unlawful. Of course you did not ask to be involved in the accident or to be off for so long, but at the same time the employer has a business to run and they have the right to deal with frequent or prolonged absences in a way that will enable them to eventually take formal action in the event that things do not improve. Assuming that you return to work, work as per the adjustments and the policy, meaning you do not have further long-term absences or trigger the next stages, this should not proceed any further and it will also be removed from your record after some time as it would no longer be relevant to any future action the employer may take.

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? Thanks

Ben Jones :

Hello, I see you have accessed and read my answer to your query. 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:

hi there,

Customer:

The organisation is following there staff policy on the sickness absence procedure. The stage 1 formal review (first written warning).

Customer:

The stage 1 can lead to the following action which may include 1) First written warning 2) Monitoring 3) Further referral to Occupational Health 4) Adjustments

Customer:

I have been issued with (No 1, 2 and 4) and the union is disputing the no 1. The evidence stays on file for 12 months however I attending work still with medical issues and consultants still investigating my MSK injuries. I am worried that if this stays on stage 1 over 12 months and i need to have an operation it will give them the opportunity to increase this to a stage 2/3.

Customer:

I think it's also annoying that is was my decision to return back to work despite still being 50/50 and this is what I get for doing just that.. they are also supposed to be putting in place various adjustments before the 25 Feb and this has currently not been done yet.

Customer:

what would your advice be on the above appeal?

Customer:

thanks

Ben Jones :

Hi, an employer is able to follow a sickness policy and issue employees on long-term sick leave with a warning if necessary. It would be unfair if they just went straight for dismissal but if they are following a stepped procedure where you are issued with a warning, then given the chance to improve your attendance, are provided with adjustments and so on then it would be fair, especially if there is a formal policy which clearly outlines the triggers for formal action.


 


At this stage you can appeal the warning but if the appeal fails it may be difficult to challenge it further. Instead you need to ensure that the employer is doing what it is supposed to be doing such as making the relevant adjustments and introducing whatever changes are needed to assist you at work.


 


Has this clarified your last query?

Customer:

Thanks Ben!!!

Customer:

Hi Ben,

Customer:

Sorry to be a pain I promise I have one more question that is playing on my mind at the moment... If in the 12 months i need to have an operation based on my MSK s

Customer:

spinal injuries within the 12 months can my employers try to move this to a higher stage at no fault of mine despite returning back to work? will this be classed as discrimination under the disability act? and can I over turn this decision?

Customer:

My employers are ready aware that I am returning back to work but the investigations and treatment is going to take a while to assess.

Ben Jones :

hi, even those with a genuine disability can be disciplined and even dismissed if their absence becomes a problem. Discrimination would therefore only be a potential issue if the employer has failed to make the necessary reasonable adjustments and is taking action as a result when the changes could have avoided or at least delayed this from happening. I know you keep highlighting this is due to no fault of yours but sickness absence rarely is due to the fault of the employee, which also means it is often not the fault of the employer either but they do run a business and have the power to manage issues that can affect it, such as long-term or continuous absences by employees. The key is still that a fair procedure must be followed, over time, rather than an instant dismissal

Ben Jones :

I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can.

Ben Jones and other Law Specialists are ready to help you