Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. How long have you worked there for and how long has this stress condition been going on for?
Please note I am travelling this eve so may not be able to reply straight away and will likely do so later on today thanks
Thanks for your patience. Whilst there I nothing stopping he employer from taking disciplinary action against you, as you have more than 2 year service you will be protected against unfair dismissal so the employer must ensue that any action is fair and reasonable and that a fair procedure is followed.
Misconduct is a common reason for taking disciplinary action against an employee. It could be due either to a single serious act of misconduct or a series of less serious acts over a period of time.
In order to justify that disciplinary action on grounds of misconduct was fair, the law requires that the employer:
· Conducts a reasonable investigation;
· Follows a fair disciplinary procedure; and
· Shows they had reasonable grounds to believe the employee was guilty.
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.
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 formally sanction them. When deciding on the appropriate penalty, the employer should consider the nature and seriousness of the offence and the employee's disciplinary record. Unless the offence was one of gross misconduct, ACAS recommends that the employee should be issued with a written warning.
In summary, 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 about any of the above and there is belief or evidence that the employer has not satisfied these requirements, an appeal can be submitted to the employer immediately after the disciplinary outcome. If the disciplinary results in dismissal then a claim for unfair dismissal can be made in the employment tribunal. There are two requirements to claim: the employee must have at least 2 years' continuous service with the employer and the claim must be made within 3 months of the date of dismissal.
In any event the employer should not be taking any formal action whilst you are signed off sick. In the meantime you can also start taking your own action against tem for the stress you have been placed under.
This is your basic legal position. I have more detailed advice for you in terms of the rights you have against stress at work, 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, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Thank you. Whilst stress in the workplace is becoming an ever-increasing problem, no specific legislation deals with it. The rights of employees in these circumstances are scattered across various legislation and common law examples.
A good starting point is to look at The Health and Safety at Work Act 1974 and related statutory instruments, which impose a general duty on employers to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees. This includes a duty to undertake risk assessments and manage activities to reduce the incidence of stress at work. In addition, under common law an employer owes a duty of care towards its employees, the breach of which can amount to negligence.
As no standalone claim exists for being exposed to stress, the affected employee has the following options open to them if they were going to challenge their employer over this:
1. Grievance - this is a formal internal complaint, following which the employer is obliged to investigate the issues and deal with them in an appropriate manner. It should always be the first step in trying to bring the problem to the employer's attention and to try and reach a resolution.
2. Constructive dismissal - this occurs where the employee resigns because they feel they were left with no other option in the circumstances. Further considerations include:
· It must be shown that the employer had acted in breach of the implied terms to provide a safe system of work or through their actions (or inactions) had broken the mutual trust and confidence
· The breach relied on must be sufficiently serious to justify instant resignation
· This claim is only available to those with at least 2 years' continuous service with their employer and must be made within 3 months of resigning.
3. Personal Injury - this is a claim for negligence against the employer. Further considerations include:
· Some recognised illness must have been suffered. This could include clinical depression, specific trauma stress, a physical injury (e.g. stroke), etc.
· The illness must have been caused directly by the employer's negligence, such as failing to appropriately deal with managing stress in the workplace
· The illness must have been reasonably foreseeable - for example if the employee experienced one breakdown, that would have indicated to the employer that there is a problem and that further issues could arise if things were not dealt with appropriately.
· The time limit to claim is 3 years from the time the injury was suffered.
In the first instance, I would advise going down the grievance route first and only consider pursuing legal action as a last resort if it is evident that the matter cannot be resolved in any other way.