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Formal Written Warning. Do I have grounds for appeal?

(13 Posts)
AmeliaFolch Wed 25-Apr-18 20:33:56

Hi. I've worked as a retail manager for the same company for the last six years and have an unblemished work record and have always gone above and beyond.
I suffer from several chronic health conditions, asthma, depression and Crohns but have always managed to stay well enough to take no sickness during my first five years with the company.
However since last October I have had a period of really poor health, acute attacks of all these conditions leading to a period of long term sickness from October to December and a week long absence with a nasty bout of flu in February. I was referred to occupational health for the long term sickness absence and the doctor agreed that my illness had been exacerbated by the stressful working conditions. Since the company introduced the living wage 18 months ago, my team has been slashed to almost nothing. I have one part time assistant meaning for four days a week I'm running the store which is very busy alone, no chance for a toilet break never mind lunch. By the time everything has been done I'm working 9/10 hours a day but am only paid for 7. The OH doctor recommended several reasonable adjustments including a phased return and provision for me to be able to take breaks. On my return none of this was put in place apart from a very brief phased return where I was constantly bombarded with questions from my line manager about was I ready to go full time yet as my phased return was impacting the business negatively.
In February I caught flu and was off work for a week then dragged myself back to work in spite of having trouble breathing. I assumed it was just a leftover of flu and would clear up eventually. When I returned to work I had an informal meeting with my line manager who seemed sympathetic and we agreed I should have no absence for four months.
However, a week later I woke up one morning with chest pains and unable to breathe. I felt awful, I couldn't speak and my daughter took me to A&E. I was kept in for various tests and was told I had a chest infection and prescribed antibiotics and painkillers. I took 2 days off on that occasion until the meds kicked in and I felt well enough to go back.
Last week I had a formal meeting with my line manager and someone from HR and was given a first formal written warning. I understand that people sometimes take liberties and sickness will inevitably impact on a business that's being run on a shoestring but I've worked for them for six years, I'm known as a hard worker and conscientious. I've always pitched in and done more than my share. I know there are procedures but I feel this is unfair considering working conditions have definitely contributed to my absences. It's also especially galling as they present themselves to the world as a caring, ethical company who always support their employees through hard times. I apologise for the essay and thank you if you've managed to plow your way through it. I didn't want to leave out anything important. I really need some advice as to whether I have grounds to appeal this decision or do I just suck it up?

TrippingTheVelvet Wed 25-Apr-18 23:28:04

Absolutely appeal it based on the fact that reasonable adjustments were requested by a professional and not implemented. The lack of adjustments have contributed to you not being able to cope with work as easily. I would also request in writing that you are given a higher level of tolerance towards sickness as a reasonable adjustment.

AmeliaFolch Thu 26-Apr-18 08:22:17

Thank you so much for your reply. These are my feelings exactly. I just wondered if my anger was clouding my judgement a little. I spoke to someone who thinks they are scared I'll make waves about the way I've been treated so they're making things so bad I'll either go sick again or resign. It's definitely not going to happen. They have a fight on their hands. Thanks for your advice smile

justawhisper Thu 26-Apr-18 10:25:19

I agree, def appeal it!
How awful for you.

AmeliaFolch Thu 26-Apr-18 11:07:07

Thank you 😊 I'm mentally composing a strongly worded appeal letter as I work. I'm just really angry that I've given my all for so long and have been thrown under the bus at the first sign of a problem.

TrippingTheVelvet Thu 26-Apr-18 13:18:33

Mention the Equality Act and their duty as an employer to implement reasonable adjustments. If the lack of these could have contributed to your absence they need to be careful that they're not disciplining you by proxy for having a disability.

Aw12345 Thu 26-Apr-18 13:30:04

Poor you! Absolutely appeal it, keep everything in writing/recorded. Hope you get a run of good health soon :-)

LP17 Thu 26-Apr-18 13:40:39

@AmeilaFolch another vote for appeal. The conditions mentioned are highly likely to be covered by the Equality Act. By them failing to make reasonable adjustments as recommended by OH, you have failed to make a sustained return to work. Their fault, not yours.

daisychain01 Thu 26-Apr-18 14:04:55

Amelia the term reasonable adjustments is associated with Disability (either physical or MH related) - as you probably know, it's the employers obligation to support the employee by providing adaptations in the workplace specifically to ensure the person's Disability doesn't put them at a significant disadvantage to other employees.

Just to underscore, I think they have treated you appallingly from what you've written, but did you make them aware in the past of your condition/s being classed as a Disability? Worst case scenario they could push back and maintain you didn't disclose a disability. They could say they did more than their legal obligation by helping you with the phased return - even though you've pointed out here it was a sham because they pressurised you to return (kinda give with one hand, take away with the other).

It sounds like OH conflated Reasonable Adjustments with Phased Return (which a GP might include on a Fit Note) but in Equality terms a phased return is technically distinct from reasonable adjustments, although they may be combined recommendations from OH.

If you have proof of your Disability and your disclosure of same, then you could have a strong case if they ultimately throw the book at you, however if not, they may fold their arms, do nothing (despite what your colleague said), hoping you will resign. These corporates have legal experts on a retainer who can advise them at a moment's notice.

Definitely appeal their written warning, but be aware where it may go.

Are you a Union member eg USDAW (Union of Shop, Distributive and Allied Workers)? You need some legal/moral support behind you.

AmeliaFolch Thu 26-Apr-18 15:38:56

Thanks everyone for your support. I did wonder if I was being a bit precious. @daisychain01 I declared asthma on my initial application. After having stomach problems for a couple of years I was diagnosed with Crohn's in 2015. I told my line manager straight away and told him that having a break so I could eat regularly and be able to access the loo during the working day were essential in order to try and prevent flare ups. It wasn't a problem initially as I was always working with someone else. I've told my line manager repeatedly and he just shrugs and says there's no money for another full time staff member. The OH doctor did state in his letter to my employers that he is of the opinion my depression is classed as a disability under the Equality Act. I do think they're trying to manage me out but I'm not going to make it easy for them to do so! I have thought about joining Unison in the past. I wish I had as I've got a feeling they won't get involved in a dispute that started before I was a member. I can't remember where I heard that though.

LP17 Thu 26-Apr-18 16:59:51

@AmeliaFolch don't worry, I only joined the union when I actually needed to. It doesn't hurt to try!

AmeliaFolch Thu 26-Apr-18 17:43:07

@LP17 I'm going to join this evening. It's definitely worth a try. smile

TrippingTheVelvet Thu 26-Apr-18 20:12:59

Actually I agree with Daisy. If it was a case of recommendations for a phased return, that is different to reasonable adjustments for a disability- I scanned past that it was asthma. I would still be challenging it though.

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