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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45303
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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Hi. My girlfriend is sick with psychosis. She often gets confused

Resolved Question:

Hi. My girlfriend is sick with psychosis. She often gets confused because of her sickness and medication and the employers is aware of that. She is receiving a lower rate disability benefit. She was working in Morrison's Depot in Bridgwater, she was employed by DHL Excel. She works for them for 8 years altogether 6 on one contract in Yate in similar but smaller Morrison Depot and 2 years on a new contract here in Bridgwater in a huge Depot. She joined relocation plan when they decided to shut down the depot in Yate. We believe that the employer has not made enough of reasonable adjustments for her safe recovery. For a long period of time they refused to move her to a different position inside the depot, they openly stated that she will not be considered for another position until she achieves full targets on the current post. Only for a short time they lowered her target by 50% but she was performing in between 40 to 55 percent so they were still displaying unhappiness. They stripped her of this arrangements after they alleged they seen her walking faster from work to home than she does when she is at work (everyone does that we want to get home fast). Recently they been more strict about monitoring her target with management monitoring her all the time watching her and she had to count everything she does in the warehouse like no one else. They stripped her of her extra breaks which they permit for only a short time. They monitor her time in toilet where she goes to calm her thoughts down. They disciplinary her three times for silliest reasons in past 3 months or so. For throwing over a stack of pallets, company policy is not to do that. She is small framed and she did that because it was an empty stack of trays and she needed to take out only few cases of the bottom of it so that it would be sorted. She got warned for it. Then they disciplinary her for lateness she was late about 5 times in more that year an half. She is on a strong dose of sedative medication and antidepressant that cause her over sleep once. She cycles, one morning she got a tire and was late. Then she could not find her keys so was late. Rest was under 15 min. Then they disciplinary her for performance. With a three month warning. They introduced a improvement plant - which was simply strict target monitoring. Performance reviews outside of normal hours as well, every day after work and at the end of every week. Constant welfare meetings leading to nothing. They told her that if she will not improve in 3 months they will sack her. Union got involved. They backed down a little. Recently two company doctor reviews took place that worked in her favour I believe. They ignore doctors advice, employment support advice, they do not seem to take her sickness seriously. Now recently she has been sacked off work for taking a little bit of milk and sugar from a Depot Canteen. There is no prices in the canteen at all. Sugar with milk dispenser are placed on a table opposite to the tills distance of 2-3 meters. She walked in there on one day and took some milk and sugar for one drink which she consumed in her rest area. The next day she thought that she wont have to walk about 500 meters there and back on break if she takes some sugar in a small container to her locker next to her rest area. It's a large depot and it's a mile long her working department is on one end and the canteen is in the middle. She spends her breaks in rest area next to the RRU that's where their lockers are as well. So she took a little bit more sugar next day (fourth of a cup of sugar) and milk for two drinks this time and walked out of the canteen. On both occasions canteen staff seen her do it but did not challenge her. They confessed it later. This time two manager seen her do it and reported her for theft. They have no theft policy in place. At the time she took it she said she didn't know that she has to pay for it. She told the she gets confused at times because of her sickness and she did not think to ask. She recalls someone mentioning that it was free. After she thought about it she says it is possible that in her previous depot in Yate the milk was 5p and sugar and tee were free. This depot is newer better and much better equipped. She believed that tea, sugar and some milk are for free. She was happy to pay for it after she found out that it's to be paid for. She even brought them milk to work but they did not want it. She has no such previous track record, 8 years of employment. It's not like she walked in to a warehouse and concealed an item and stole it. She did not even plant to take it off site. She done that in belief that it is for free. We already been trough a first appeal, her employer is trying to imply that she had reasons or belief or she new that she has to pay for it at the time she took it and they refused her appeal, will do second appeal. Is it good case for court. She is sick confused and meant no harm and thought its a courtesy of the employer
Submitted: 2 years ago.
Category: 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. When did the dismissal take place?

Customer:

a week or so

Customer:

you want an exact date

Customer:

25th feb

Ben Jones :

no it's ok thanks

Customer:

the union says it unlikely to reach court

Ben Jones :

were her actions that led to her dismissal linked to her medical condition?

Customer:

well as I said in the long letter she was dismissed for accusations of theft

Customer:

but she is sick and they know she gets confused at times is withdrawn and has difficulties talking to others she said she didn't know but now they claim she did because she recalled later that milk was in her old depot for 5 pence

Customer:

she said she that at the time she took it she thought it was for free

Customer:

she was happy to pay for that later

Ben Jones :

ok let me get my response ready please

Customer:

I don't know what else to tell you she exposed herself and they took their chance

Customer:

but they definitely looked for a reason to fire her earlier it seems even like some discrimination has been going on, recent disciplinary procedures stressed her out to a point where she was very unstable with her sickness crying a lot and hearing voices being very stressed out about work. It was easy for her to think that it is for free and due to her medical condition not to think to ask about it. Her employers seems to be ignoring all the mitigating factors and jumping in to the dismissal. She did not take it off site first of all. She only took a little bit no more than 25p or so worth. It was a warm drink after hours of work in cold warehouse. Canteen staff did not challenge her. They did not suspend her straight away but delayed it to the end of her work day. There is no pricing on sugar and milk and tee or anything in canteen for that matters. She explained them the situation that normally she takes her own milk and sugar and coffee but on one occasion she forgot. After she done it the first day she thought of taking some sugar in to the locker so that she does not have to walk there every morning or take it from home. If she would have to go there every morning to get it she would not go she would take a little bit of sugar from home. She cycles and her bag is heavy enough when she goes to work so she didn't want to carry a bigger container from home every few days.

Customer:

They chose to ignore all that and her 8 years of service on 2 contracts.

Customer:

she told them that she believes that size of the damage and circumstances at which her misconduct occurred should not classify it as a theft as she had fair reasons to believe that the sugar and milk were free

Ben Jones :

Misconduct is a common reason for taking disciplinary action and it is also a potentially fair reason for dismissal under the Employment Rights Act 1996. It could be a single act of serious misconduct or a series of less serious acts over a period of time.


 


In order to justify that dismissal on grounds of misconduct was fair, the law requires that the employer:



  • Conducts a reasonable investigation;

  • Follows a fair disciplinary procedure;

  • Has reasonable grounds for believing the employee was guilty; and

  • Show that dismissal was a decision that a reasonable employer would have taken in the circumstances.


 


In addition, the employer is expected to follow the ACAS Code of Practice on disciplinary and grievance procedures. Altogether, it means that a disciplinary procedure should be conducted as follows:


 


1. Investigation - a reasonable investigation is needed. What is reasonable depends entirely on the circumstances and especially the nature and seriousness of the allegations. The more serious these are, the more detailed the investigation needs to be. Whilst a medical condition would not directly serve as an excuse for misconduct, but the employer would need to investigate whether medical conditions could have affected her actions and not just make a decision without that.


 


2. Disciplinary hearing - if the investigation provides sufficient evidence of misconduct, the employee may be invited to attend a formal disciplinary hearing. They must be given prior notice of the hearing, including details of the allegations, allowing them time to prepare. They have the legal right to be accompanied at the hearing but only by a trade union representative or a colleague.


 


3. Decision and penalty - following the disciplinary, if the employer holds a genuine belief that the employee was guilty, then they can go ahead and dismiss. When deciding on whether dismissal is appropriate, the employer should consider the nature and seriousness of the offence and the employee's length of service and disciplinary record. They also need to act with a degree of consistency if other employees have previously been disciplined over similar issues. Unless the offence was one of gross misconduct, ACAS recommends that the employee should be issued with a written warning. In this case we are not talking about intended theft, and also the value is important – this is just a bit of sugar and tea, not stock or other higher value company property.


 


However, an employer is not expected to prove that the alleged misconduct had definitely occurred. Disciplinary action will be fair if the employer can show that it had conducted a reasonable investigation, followed a fair procedure and held a genuine belief that the employee was guilty. Finally, it must show that the penalty was a reasonable action to take in the circumstances and one that a reasonable employer would have taken.


 


If there are any doubts or evidence that the above requirements have not been satisfied, an appeal can be submitted to the employer straight after the disciplinary outcome is communicated, which you have already done. If the appeal is rejected a claim for unfair dismissal can be made in the employment tribunal. The time limit to claim is 3 months from the date of dismissal and the claimant needs to have at least 2 years' continuous service with that employer, which is not an issue right now. Also if this appears to be a reason to get rid of her due to her condition, it could also be a discrimination claim. There is nothing stopping you from making wither claim, it is actually for the employer to justify that the dismissal was fair.


 

Customer:

she started her employment just before the 6th of April 2012 i think on the 1st

Ben Jones :

ok that is fine in that case it is only a year's service she needs which she has

Customer:

I understand the procedure allready

Customer:

I asked if it is a good case for a court. Because the union seems to believe that because she was accused of theft, the court will reject this case. One more thing the union rep came in to the canteen later and asked for price of a fourth of a cup of milk and they were not able to produce him with an answer. The management said that the sugar and milk are a part of a drink and as such they are priced together with the drink.

Customer:

or as a part of a drink or something like that

Customer:

I think I gave you enough of details all I ask is will this be an automatic rejection because it is a theft or will this reach court and if so do I need my own solicitor for it or can I get one from court or something

Customer:

simply is this a discrimination and unfair dismissal case to you or no?

Ben Jones :

the court will not just reject this because she was accused of theft, hey will still consider the claim like any other and as mentioned it is for the employer to justify that they had a fair reason for dismissal and that they followed a fair procedure

Ben Jones :

there is no simple case, it does not exist - this is for the employer to prove if their reasons were fair

Ben Jones :

i really depends on what evidence they can provide and how they defend the case

Customer:

so then do you think they were fair enough?

Customer:

is it worth a hassel

Customer:

she is sick you know and dragging her trough courts is not an ideal option but she wants to get back at them for what they did to her

Customer:

they seemed to ignore all the mitigating factors are they not reasonable enough ?

Ben Jones :

Unless a lawyer conducts a formal cases analysis, which you ill not get here and for which you have to pay a lot more, you will not be able to get prospects of success and even then there is always a risk in going to court. Also you have to pay fees now, you are looking at more than £1,000 to take this further

Customer:

8 years of employment, no such history, thought it was for free, no pricing, canteen staff seen her but did not confront her, she did not take it of site, it is a small loss to the company, she is sick, ongoing witch hunt ????

Customer:

do you think any solicitor would take it as no win no fee?

Ben Jones :

t=not many employment lawyers work on a no win no fee basis unfortunately, you can look around but it may not be easy to find one

Customer:

I see

Ben Jones :

this is really more for personal injury cases

Customer:

O.K.

Customer:

I guess it is all I need to know.

Customer:

Ohhh

Customer:

can I represent myself

Customer:

or her

Ben Jones :

you can help with representation but it usually one or the other that has to do it, so either you or her. This is an organisation that may help, they represent for free:

http://www.thefru.org.uk/

Customer:

thank you

Customer:

can you give me an honest answer does she have a chance??

Ben Jones :

it is not about having an honest answer, it is not having the FULL details to give such an answer and also not knowing what the employer's evidence is, so this could be completely misleading and this is not what I am here to do

Customer:

well I told you the whole story they seen her do it they got it on cameras two manager seen her and the staff seen her she did it twice and one second time she took some sugar to the locker

Customer:

that is all

Customer:

they have nothing else

Customer:

they have a policy on health and safety about the stacks disciplinary and no theft tolerance policy

Customer:

please understand I don't want to trag her trough courts if there is no point

Ben Jones :

the whole story will not be what you have written I can assure you, you will not be able to have the full case in several pargraphs, this is just a summary, it is not the full story as such, so to tell you yes or no from this is impossible and I don't want t mislead you

Customer:

well that a shame

Customer:

thanks for the free legal advice rep thou and I guess it is all now

Ben Jones :

n worries, they are quite busy though so the earlier you contact them the better

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45303
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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