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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45306
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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My mother (62 years old) who is recovering form Cancer had

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My mother (62 years old) who is recovering form Cancer had been asked (by letter) to attend a formal meeting with her employer. As she was away at the time visiting family on an urgent matter she was unaware of the letter being sent and did not take possession (she has still not seen the letter as it was returned to sender by the Post office). Upon her return a second letter was sent by her employer (letter which she had collected) stating that she was made aware in the first letter that the potential outcome of the meeting could result in her employment being terminated without notice on the grounds of failing to maintain contact with her employer during her absence. Note: Her absence in this case is due to recovery from Cancer - something her employer is of course aware of)
The 2nd letter continues to state that due to her failure to attend or to contact her employer to re-arrange the meeting a decision was made to continue with the meeting and a decision made to terminate her employment without notice on the basis of having committed an act of gross misconduct... reasons given were the continued failure to maintain contact with her employer during her "absence".
My mother is required to provide regular doctors opinion (usually every 2-3 months) detailing her suitability to begin work or not as the case may be. Telephone contact has also been maintained although not regular...to my knowledge there is nothing in writing between my mother or her employer that stipulates anything about maintaining contact, frequency or method...
Is the decision to terminate her employment under gross misconduct when she is suffering / recovering from cancer and with the turn of events described above fair? And can it be overturned...I will add that my mother claims employment and support allowance and believes this will now have an effect on her ability to continue to claim this benefit.
Submitted: 9 months ago.
Category: Law
Expert:  Ben Jones replied 9 months ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. How long has she worked there for?
Customer: replied 9 months ago.
Hello Ben, She has worked there from 1998 September (Spire Leeds Hospital)
Customer: replied 9 months ago.
Ben, Would you like the scan of the letter confirming termination of employment and reasons...?
Customer: replied 9 months ago.
(Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Customer: replied 9 months ago.
Ben, I may loose internet connection and if I do I will try my best to re-connect but If I loose contact I would appreciate if you could email your reply / further questions together with you contact details to my email address:***@******.***I would appreciate if we could make contact by phone - my number ***********
Adam
Expert:  Ben Jones replied 9 months ago.
Hello Adam, I have the documents, thanks. I am in tribunal today so would not be able to call but please leave it all with me and I will provide my full response later today. Thanks
Customer: replied 9 months ago.
Thats great - is there anything else you require form me?
Expert:  Ben Jones replied 9 months ago.
no that's all thank you
Expert:  Ben Jones replied 9 months ago.
Many thanks for your patience. I must say that the employer has acted in a very heavy-handed manner and I am not convinced that the dismissal would be seen as fair. She has more than 2 years’ service with the employer so she is protected against unfair dismissal, which means that the employer has to show that there was a fair reason for dismissal and also follow a fair procedure. They may try and argue that misconduct was a fair reason and that they had followed a fair procedure by asking her to attend the meeting and following some specific policies they had, but legally they may struggle.One of the requirements for a fair dismissal on grounds of misconduct is that the decision is one which a reasonable employer would have made in the circumstances. Would a reasonable employer have gone ahead with a dismissal on grounds of gross misconduct of a person who is obviously recovering from a serious and life-threatening illness when all they have done is not follow a requirement to give regular updates? That is quite unlikely. What should have happened is that they should have tried to establish why she had not followed the requirements, issued her with a warning first, reminding her of her obligations and clarifying what the requirements on contact are. Only continued failure to adhere to that should have resulted in further disciplinary action and eventually dismissal.So by all means appeal now – this is the fist step in challenging this. If the appeal fails then she has the option of making a tribunal claim for unfair dismissal and also for potential disability discrimination. There is a 3 month time limit from date of dismissal to make a claim and there is also a preliminary step involving ACAS which I can discuss with you, but that is her legal position now that the dismissal has taken place.This is your basic legal position. I have more detailed advice for you in terms of the steps to follow to initiate a tribunal claim, including the mandatory involvement of ACAS, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45306
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Law Specialists are ready to help you
Customer: replied 9 months ago.
Thank you Ben, I also believe that the employer has been heavy handed...I also believe there is no clear and defined information / contract stipulating the basis for continued contact, its method or time frame.I would like your instruction now on how to proceed - I would like to contact the employer early next week with our stance and have them respond accordingly. Would you suggest a face to face contact or continue now formally with written correspondences?
Customer: replied 9 months ago.
I would like to ask - how to make the appeal? Is there a standard written template or will you provide the wording or simply instructions?
Expert:  Ben Jones replied 9 months ago.
Thank you. At this stage you would be issuing a formal appeal to the employer. The instructions on doing so are in the dismissal letter in the penultimate paragraph on the first page. They will arrange for an appeal hearing where she can appeal the dismissal and then they will make a final decision. If that decision is to reject the appeal and let the dismissal stay, this is when she can take matters further. As mentioned she can go to the tribunal for an unfair dismissal claim. A new feature in the employment tribunal’s claims process is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible for the parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal. If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return for the agreed financial settlement. The conciliation procedure and the form to fill in can be found here: https://ec.acas.org.uk/Submission/SingleClaimantPage In terms of the time limits within which a claim must be presented, the early conciliation process places a ‘stop’ on that and the time between notifying ACAS and them issuing permission to proceed with the claim would not count for the purposes of these time limits.
Customer: replied 9 months ago.
Hi Ben,The one week from the date of the letter to make the appeal has now passed - this is (I assume) based on when the letter was sent (it was collected from the post office depot on Thursday the 28th of March. The letter itself does not have a date on it. I believe the card that I used to collect the letter from the Post office depot stated that an attempt to deliver was made on the 17th of March - of course no one was here to collect. Taking the above into consideration and assuming the employer can check when the letter was collected do we assume that one week would be the 5th of April and we still have time to appeal? If not and we have lost the opportunity to appeal what then? I would like to re-confirm that my mother was not here to collect the letter when post office tried to deliver back on the 17th of March.
Expert:  Ben Jones replied 9 months ago.
Try to appeal with them ASAP anyway and explain what happened. If they reject to hear an appeal then it is not the end of the world. You just proceed to the next steps - you do not have to appeal to be able to go on further
Customer: replied 9 months ago.
Hi Ben, what exactly would be the grounds of my mothers apeal? Do you have a specific reply in mind? Please assist.
Expert:  Ben Jones replied 9 months ago.
He should use the following:· Holding meeting in her absence· Treating this as gross misconduct and dismissing rather than just issuing a warning, hence failing to follow ACAS Code of Conduct· Disciplining for something which was not made clear under any specific policy· Not considering her health condition I terms of why contact may not have been made at required intervals, which could be potential discrimination for failing to make reasonable adjustments
Expert:  Ben Jones replied 9 months ago.
Sorry, she, not he
Customer: replied 9 months ago.
Hi Ben, I have created the appeal letter as per your instructions (hope it is what you had in mind) it has been sent yesterday by registered post and collected by recipient today - so the appeal has begun. What am I to do now? What are your instructions?I am attaching the appeal letter for your reference and comments - I used as much information form your responses as possible.
Expert:  Ben Jones replied 9 months ago.
Hi there, once the appeal has been submitted you simply have to wait for the employer to get back to you and arrange a date for an appeal hearing. Your mother would then attend the hearing to discuss the appeal and a decision will be made after the hearing. That would be the end of the internal process and thereafter the tribunal is the only option to take this further. And thanks for the letter, no comments there it looks fine.
Customer: replied 9 months ago.
Hi Ben,We have received an answer from my mothers employer - please find their email below and official response attached.To confirm my mother is currently in Poland with family and will be back in UK on the 27th April whilst the date of appeal has been set to 21st April.Do I have the right to respond to the employers email and suggest a date of 28th April - 1 week after their proposed date?Employers Email below:
Begin forwarded message:From: "PAM, Janice"
Subject: Letter from Anna
Date: 14 April 2016 at 15:05:01 BST
To: "*****@******.***"
Dear Wieslawa
Please find attached the response to your letter of 3 April to Anna Tchaikovsky, a copy of this letter has also been sent out in the post to you.
Kind regards
Janice
Janice Pam
PA to Anna Tchaikovsky, Hospital Director &
Rachel Balmforth, Head of Clinical Services &
Local HR ContactSpire Leeds Hospital
Jackson Avenue
Roundhay
Leeds
LS8 1NT
Tel. 0113(###) ###-####
Fax. 0113(###) ###-####
Customer: replied 9 months ago.
Attached letter...
Expert:  Ben Jones replied 9 months ago.
Hello, thanks for getting back to me. Unfortunately your question has expired as you must post any follow up queries within 7 days of the date of the original question. If you need any further help on this subject please post it as a new question on our site - you may start it with 'for Ben Jones' so that I get it and deal with it as fast as I can. Many thanks

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