Thank you. The law is actually relatively silent on all of this, especially how the Bradford factor should be applied. Legally there is nothing stopping an employer from using previous absences, which the employee has been disciplined on, to trigger further action. For example, someone who has been absent on occasions A, B and C is disciplined for these, then they continue being absent on occasions D, E and F and the employer then takes all occasions from A to F in order to pursue further action, citing the prolonged and consistent absences.
Therefore, unless you can show that there was a specific policy the wording of which prevents them from using the previous absences which have already been taken into account, the employer can potentially use them.
None of this prevents you from challenging them though and if needed you can always use the formal grievance procedure to do this. Your more formal rights will not really kick in until they have taken more drastic action though, like dismissing you and you can show that they have followed the incorrect policy in the circumstances.
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