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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Question on employment law, my work are trying to do a formal

Customer Question

Question on employment law, my work are trying to do a formal disciplinary 4minths after my return to work, is this allowed?
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today. What is the disciplinary for?

JACUSTOMER-uc3b3jf6- : 4 abscences in a rolling year. 1 for flu 1 for something i cant remember(probably stress due to sueing my work for a burn to my sons hand) but put down as something else. 1 for migraines and latest in early december for backache as hurt my back in house but aggravated at work by undue lifting of boxes filled with bools that had been stored in he dungeons of the library. My problem is that i had an abscence in last month for an asthma attack after being at work for 3 months with whooping cough undiagnosed until too late so i believe at some point this will then trigger a further disciplinary so more rapid affect on discipline policy. At time of my welcome back i pointed out the h&s policy re backache and my managers response was too say she cant follow impossible policies! It basically said to give me a leaflet and refer to ohs which i have asked for numerous times as i have molecular degeneration in both eyes at age 38 aswell as lowkey asthma which flared up dueing whooping cough!
Ben Jones :

There is nothing in law that says a disciplinary must be conducted within a specified time limit after the incident for which it is being convened occurred. The ACAS Code does state that any issues should be dealt with without unreasonable delay but that would of course make any delay dependent on the individual circumstances, such as why was there a delay in the first place, can it be justified in any way what would have been reasonable to expect of the employer and so on. It is not a rigid approach by any means. So you must ask yourself, why was there a delay, for example was the employer investigating the matter, were they trying to gather evidence, was there unavailability of staff to deal with this, were there more pressing concerns they were dealing with and so on. These are all things that the employer could use to justify this short delay if necessary and even then it is a matter if interpretation and you can't point them to a specific rule that says they should have done the disciplinary within a specific date.

JACUSTOMER-uc3b3jf6- : Reason given was hr where behind and she'd only just got it! Also changed from number of abscences to hours as im parttime but this has never been advised to me and dont understand why they wont send toohs either as the lights in work are partly causing my migraines and a h&s audit showed blinds needed for glare and still not got 3years later.
Ben Jones :

So can you link their failure to do as advised with your absences?

JACUSTOMER-uc3b3jf6- : Thats what im hoping as it seems im being penalised yet there lack of order is left unsaid. Is 4 months due to hr a little lame for penalising a worker 4 months later? Also ive got it documented repeatedly that h&s have said blinds and ventilation which has been ignored due to budget constraints yet other works have been carried out since then ie/ dry rot pores 2 years after h&s report on blinds !
Ben Jones :

Well the delay issues is as discussed above really, but if your condition makes you disabled in the legal definition of the word, then the employer has a duty to make reasonable adjustments to help you and alleviate the effects of the illness in the workplace. So for example the blinds - they could have amounted to a reasonable adjustment and their failure to install them could either amount to discrimination, or at least give you a reason to defend a specific absence being included in this disciplinary, which could mean you have not yet reached the required number as per policy

JACUSTOMER-uc3b3jf6- : Hence why i wanted an ohs report which they have refused to do so either way i feel i have a strong case but unfortunately our company is now going thru an upheaval and union reps have left so very little representation to be had!
Ben Jones :

whilst they are there to help you, you do not need a union rep to take the matter further if you have to

JACUSTOMER-uc3b3jf6- : Believe it is best to have someone with you so doesnt come down to he said she said and i wouldnt put a colleague in that position
Ben Jones :

yes that's true but you also have to work with what you have and if that means without a union rep because they cannot provide you with representation, you have to reconsider your position and how best to deal with it wthout an undue delay

JACUSTOMER-uc3b3jf6- : Mmm agree to disagree on that one thanks as i know what the company are like and trust me they play dirty.
Ben Jones :

yes I understand but if there is no union available then you will still have to proceed with the complaint because if you delay it for too long you could also find yourself having less weight attached with your arguments because you did not bring it up in good time

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

JACUSTOMER-uc3b3jf6- : Cant get signed off using ratings noatter what one i pick sorry
Ben Jones :

there is a bug sometimes, sorry - you can just type it in instead, thanks