Can an employer call an employee into work for a disciplinary...(29 Posts)
...while said employee is off sick with work related stress? DP had an accident at work in August and has been off work since, he went back last week but was only allowed to stay in the office (he works on the roads, he's never done indoor work in his life!) as work were investigating his accident and trying to find out whether it was his fault or not. After a week and a half of doing photocopying he finally had enough and asked his boss to being him home and the same day he got a sick note for stress at work. Today he gets a letter, asking him to go in on Friday so work can bollock him about all the things he's accused of.
A couple of people have told DP that calling him in for a disciplinary is illegal while he's off sick, is this correct?
No it isn't. Your DP is unfit for work. That doesn't necessarily mean he is unfit to attend a disciplinary meeting. If his doctor provides a letter saying he is unfit to attend this meeting that would be another matter. Your DP may also want to think about asking for some adjustments to allow him to attend, e.g. holding the hearing somewhere else or by telephone conference. If they act unreasonably and your DP is dismissed it could be unfair dismissal even if they had a good case for dismissing him.
Perfectly legal to continue with ongoing disciplinary action; as prh says, being unfit to work doesn't mean unfit to attend a meeting, although if his GP thinks he's unwell to the extent that he couldn't attend a meeting, he could get a note to that effect, and get a postponement.
It's not going to go away though, so he should bear that in mind.
Was he off sick for a physical condition related to the accident until last week, or suspended while they investigated? I'm hoping you are misrepresenting him here, because from your post it sounds as though he was fine to work, but didn't enjoy photocopying so got his doctor to sign him off with stress. Hopefully that's coming across wrong rather than being an accurate representation of the situation!
What is causing the stress exactly? That might have a bearing on whether it would be reasonable for him to be unfit to attend the hearing. How long is he signed off for?
He was off sick until last week because of a fractured sternum and an 8" laceration to his chest. He was using a petrol saw to cut a crash barrier and the saw blade bit down on the metal, jumped back at him and sliced him across the chest, 3" higher and it would've been his neck. The t-shirt he was wearing saved his life by snagging the saw blade and stopping it. It still gives him a bit of trouble now (feels stiff/achey if he does too much), the GP has said he is fit for work but only light duties. Because the GP gave him a fit note saying that, work said they can't suspend him so he'll have to go in the office.
He's now signed off for stress because he was worrying about what's going to happen to him and why work were taking so long to call him in for The Talk.
He's off until the first week of November, can't remember the exact date though.
is it a discipline or a fact finding meeting? Because if it is a discipline meeting then he has the RIGHT to take someone with him - and he should - has he a union official. If it's a fact find then no. Has he been advised in writing. Read these - www.acas.org.uk/media/pdf/s/o/Acas-Guide-on-discipline-and-grievances_at_work_(April_11)-accessible-version-may-2012.pdf
So is he stressed because he doesnt want to do boring work in the office? Thats what it sounds like. (and I'm not being narky, just looking at it from all angles).
1. He was off sick as a result of the accident.
2. Then the GP said he was able to return to work but office duties only (ie not return to his original role).
This seems reasonable, the company have accommodated him and found an alternative role for him.
So why has he been signed off with stress because of being called in for a talk?
As an aside, has the accident been properly investigated as it doesn't sound as though adequated protection was in place if he was only wearing a T-shirt to carry out high-duty cutting work...
Grey I'm not entirely sure, DP said it was disciplinary but I've just read the letter he got, it has a list of all the things he's accused of (although why he's getting accused of his colleague doing things wrong I have no idea ) and it's claiming he's being invited to an 'investigation meeting'
Party I just explained that in my previous post.
This is a list of PPE that is provided for them by the company
Heat proof steel toe cap boots (when this particular company took over they didn't check what boots they bought for everyone. They all ended up with electricians boots , ie, not heatproof, and DP stood on 200 degree c tarmac and burnt his feet severely damaging the nerve endings in the soles of his feet)
Reflective trousers, waterproof trousers that aren't waterproof, tops, jumpers, fleeces and waterproof macs that aren't waterproof.
Is he in a union?
Has he sought legal advice?
What is on the list of things he is accused off and has he gathered evidence regarding his response to them?
Was the accident reported internally and to the HSE?
if it says investigation then it's not a discipline. he needs to sit down and answer the points he accused of, so I suggest he works through them. It would be better if he could speak to a union official to give him guidance. keep copies of everything. In fact, keep the originals, and take copies to meetings. Go through the accusations, and refute them one by one, in the shortest way possibly, and always keep to the point
Are you sure it is him they are investigating? Is it possible they are investigating his colleague and want him to give evidence?
It sounds as if there's more to it. Why would he be so worried about a disciplinary if he hasn't done wrong?
It doesn't sound like he is doing himself any favours.
Definitely DP they are investigating, they've already gone through all this with the colleague and he has had his punishment, well, having it. He's had a few privelidges removed and was incredibly lucky not to get sacked.
He's anxious because it's fucking traumatising nearly chopping yourself in half and he's desperate to forget about it but he can't because work are far from finished with it and he really doesn't want to rake through it all yet again after he's explained what happened to them multiple times.
I know it's hard but you need to take a step back, keep a clear head and work through the list of what he's been accused of. If he's in the clear, then he should provide evidence - eg time sheets, emails, reports, job sheets whatever he has to prove it's unfounded. Stick to the facts with every point.
What was his colleague accused of and how does it tie in with your DP?
Last we had heard, HSE had not been informed. I don't know if this has changed yet. It really wouldn't surprise me if they don't inform them at all.
The list is fairly long so I'll just trim the unnecessary words off, like 'your' and 'they' etc. My explanations are in bold.
1. The provision of traffic management to protect the works area was inadequate. There's only so much they can carrry on one 3.5 tonne van.
2. Barriers were ineffective and members of the public entered the works area with no challenge from either worker. It's a very busy duel carriageway, no alternative footpath. They couldn't have done a path with barriers into the road, see my point above.
3. No advance signing or lead in taper were erected and 6 cones were used to protect the scene. See my first point.
4. Colleague was seen stepping down from rear of the van when retrieving TM equipment and throwing cones onto footpath without checking it was clear. How is this to do with DP?
5. Carrying out the cutting with sparks flying whilst colleague walked in close proximity without suitable PPE or concern for his safety. See above point. Also if DP is concentrating on his cutting, how is he supposed to know where colleague is?
6. The barrier was larger than anything they'd cut before but chose to carry on. Sometime or other they were bound to cut something bigger than they had before.
7. No record of a risk assessment. DP has never been given risk assessment training.
8. No checks made or recorded on equipment in the van. Not DPs responsibility, colleague was the one in charge.
9. No checks on the saw pre-use. How do they know this?
10. Didn't raise the lack of abrasive wheel training. DP doesn't have access to the training records.
This is basically the same letter that his colleague got, with a few words changed and the date of the meeting.
Your DH has been invited to a meeting to investigate the above points.
It is not a meeting to blame your DH but to find out all of the facts to help the investigation.
If I were your DH I would be looking I to each pointer and given a factual account on the reasons and understandings from his behalf.
Was there a senior member of staff on scene at the time of the incident or was your DH seen as the senior?
I'm so sorry he was injured and hope he recovers really soon.
For what it's worth these are my thoughts on these questions:
1. The provision of traffic management to protect the works area was inadequate - I would want to know, in what way it was inadequate and with the equipment made available to me v staff ratio wether sufficient traffic management would be possible (don't make excuses, offer solutions)
2. Barriers were ineffective and members of the public entered the works area with no challenge from either worker. See above. Was the job to large for the amount of staff made available to carry it out?
3. No advance signing or lead in taper were erected and 6 cones were used to protect the scene. Who's responsibility is it to check that this materiel is available and loaded onto the van each morning, are checks put in place. Who's decision was it NOT to use the taper and minimal cones
sounds bloody dangerous now
4. Colleague was seen stepping down from rear of the van when retrieving TM equipment and throwing cones onto footpath without checking it was clear. How is this to do with DP? - they will want to know if your DP witnessed this and if he is senior what he did about it or thought he should have done at the time and why he didn't do it.
5. Carrying out the cutting with sparks flying whilst colleague walked in close proximity without suitable PPE or concern for his safety. Did your DP see this colleague at any time? What is normal procedure for cutting collegues present, who's responsibility for their safety is it, your DPs or their own responsibility!
6. The barrier was larger than anything they'd cut before but chose to carry on. Who is responsible for making the decision to carry out the job once seen on site? Risk assessment.
7. No record of a risk assessment. See above, who is responsible?
8. No checks made or recorded on equipment in the van. - I'm
hoping assuming this is done daily/weekly. Who is responsible in carrying this out and how is it recorded?
9. No checks on the saw pre-use. See above, the equipment should be checked and recorded regularly
10. Didn't raise the lack of abrasive wheel training. - your DP may not have access to training records but he should know if he is trained or wether his collegue is able to carry out this part of the role.
Hope this helps and good luck.
Just to clarify, DPs colleague was the one who was in charge, DP was NOT the senior. Also, with the equipment, the van on which they carry all the ER (Emergency Response) stuff is already overweight, and that's not even with everything that they should be carrying on the van.
The equipment/van checks are the responsibilty of the ganger, this changes every week with the ER rota. The week of DPs accident it was the colleague who was responsible for the checks.
The employer provides whatever training they think the workers should have. In the 3.5 years since this company took over the old one, the only training DP has received from them is his HGV licence so he can drive the gritters and that only happened last year!
DP found his abrasive wheel training certificate yesterday (sorry, not meaning to dripfeed here, I forgot to mention!) that is dated July 2009, but no expiry date. DP had a google and discovered that it lasts 5 years. Work don't have a record of this, because they haven't bothered to ask anyone if they had training, nor did they provide any, for any of the 500 or so men that they took on when they took over this contract 3.5 years ago.
Last we had heard, HSE had not been informed.
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