Potential dismissal advice

[adviceplsssss]

My husband is a HGV driver and was placed on a final, written warning last March as he was involved in an accident which resulted in damage to his truck. It was deemed he didn’t take appropriate action early enough, and that the damage could have been avoided. This warning comes to an end next month.

completely unrelated to this, he has had three sickness absences in the “work year”. One was V&D, one was an issue with his back (more on this) and more recently, he hurt himself at work as was told by A&E he was concussed and not to drive. These three absences total 4/5 days. When he went back following the work injury (which was a total accident, not him or the employer at fault), he was told one more absence and there’d be a disciplinary

he had ongoing issues with his back since having an operation around 12 years ago and pain comes and goes, but he powers through. He’s been struggling for a few months (hence one of the absences above) but this week it’s extreme and we think his disc has prolapsed. Hospital wouldn’t do anything last night and sent him away, he was in tears at one point as he couldn’t stand. I’ve never seen him like this before. He can barely move and even in this state, wasting saying “I have to go to work!!”

obviously, he has had to call in to say he can’t work (it would be unrealistic and unsafe for him to drive) but due to his improvement notice and unrelated final warning, I am terrified what may happen here. Is it likely he will be dismissed??

separately - calling GP again this morning to try and get him some help

Anyone?

How long has he worked there?

8 years this year, only this year has he had issues

Ok so his length of service massively depends here - more than 2 years and he should be fine.
Im not a qualified HR person but have been head of HR at our company as we’re small and then use a consultant.
In your case, my understanding is warnings / disciplinary’s can not be stacked if they are unrelated - so his written warning about the accident that’s about to expire is totally unrelated to absence therefore they can’t stack absence on top of this, and if they did they’d be on very shaky grounds.

Also because one of his absences was due to a work related injury that time off must be treated differently, ACAS are quite clear on this.

So unless he’s been there less than 2 yrs then I’d say they have very little to go on. I’d get onto ACAS, they have good advice and tbh, so does AI, make sure you tell it UK HR Law and to use ACAS GUIDELINES. It could help you draft a good letter to his employers / HR pointing out their errors!

Just checked with AI….. another point it made was his back injury could count as a work place disability - it’s basically anything that has lasted more than 12 months or is likely to past
more than 12 months or is recurrent or fluctuating and expected to come back.

@Largestlegocollectionever thank you so much, this is so helpful. I’d not been able to find anything decent on the “stacking” (great term!) of the difference warnings. It also doesn’t sound as though they’ve treated the workplace injury differently, they have just seen this as general sick absence of much has shocked me. He’s been there 8 years almost, so this is very reassuring

I'm afraid I disagree a little with @Largestlegocollectionever in that disciplinary offences can be stacked even if they are unrelated. In Wincanton vs Stone, the employee had been given a written warning for insubordination. He was subsequently disciplined for an unrelated offence and, because he was already on a written warning, he was dismissed.

However, in your husband's case it would clearly be unfair to treat his absence for an injury incurred at work as being equivalent to his other absences. Also, his back injury would appear to qualify as a disability, so his employer should make reasonable adjustments for that. If they are aware of the injury, they should have made reasonable adjustments even if your husband has not requested them. Unless the injury is so bad that he cannot do his job (which does not appear to be true), dismissing him for absences related to his injury is likely to be unfair.

Note that none of this means your husband won't be dismissed. However, if he is dismissed he may well have a case for unfair dismissal and possibly also disability discrimination.

@prh47bridgethank you for this. When you say can be considered disability, he doesn’t have any current / formal diagnosis for this - because he’s just “got on with it”. Though they know one sickness was for back pain, and this new one (which is now far worse), is. We’ve asked for a fit note which the doctor can’t give until next week but I’m hoping they see some sense re the work injury a few weeks ago. I wonder if it’s too late to contest though as he signed the improvement notice when they asked him too - he was scared to challenge it with his final written warning over his head! Little did we know he’d end up needing more sick leave

Does he have a formal sickness review meeting planned? Any occupational health involvement?

If his employer is not aware of his back injury, they are not required to make reasonable adjustments and they cannot be guilty of disability discrimination. He should make sure his employer is aware of it. If he is dismissed, he should consult a solicitor who specialises in employment law for proper advice on the strength of his case.

@365RubyRedno to both, he was given an “improvement notice” to sign which said any more sickness may lead to disciplinary. So this new one, which I expect will be for several weeks, if not longer will be an “additional” sick leave - so expect this will turn into a disciplinary hearing. I don’t expect this in itself would lead to dismissal (or at least I’d hope), but the unrelated final warning is something concerning me, as I wonder if this in addition tips it to dismissal

Did the hospital do imaging on his back and then send him away, saying they couldn't see anything wrong?

He should get a GP appointment and get a sick note. I don't think legally they can sack him for being legitimately injured/in pain. He wouldn't be safe to drive surely?

It sounds like a very strict place to work in terms of allowance for illness.

No, they wouldn’t send him for an MRI as that is for “emergencies only” and as he could physically stand and wasn’t showing any red flags of loss of control of bladder / bowel it wasn’t deemed to be an emergency. GP this morning as given additional
pain meds and told him to self refer to a local nhs service which provides physio. He knows his body, he’s been through this before and it’s beyond that. He needs a scan but just keeps getting passed around

Genuinely raise a complaint with the practice and A&E department. If you dont have an Urgent care or outpatient clinic with access to scans how are you expected to get treatment UNLESS you go to A&E? The reduction of services across our country has directly led to this issue where paitents get passed around. Its ridiculous. Your husband needs to be proactive and notify work of this previous surgery and the ongoing pain so he can get Occ health involved and get them notified of his disability.

I’m not sure Wincanton vs Stone is too relevant here. In that case, it was deemed that the employer was reasonable in dismissing the employer for 2 unrelated types of misconduct.

Aggregating absences onto a warning that stemmed from performance / conduct wouldn't appear to be within the realm of reasonable actions, afaik. But I’m no lawyer, and it’d be for an ET panel to decide for sure.

That seems awful they didn't at least x ray him.

I had bad back pain and they gave me an MRI. But that was because it was through the consultant who oversaw my hip surgery a few years before so I was still 'on his books' so to speak.

Would minor Injuries be a possibility? They do have X ray machines there. He could say he injured it but doesn't know how.

Sorry if I’ve miscommunicated. The hospital / lack of scan was at A&E as our local hospital has got rid of urgent care and sends everyone there. The doctor who saw us said it wasn’t an emergency because despite the pain suddenly being severe, it’s a longer term issue he’s had and he could physically stand when she saw him. I took him there because he was screaming out and crying in pain because early that evening he was unable to sit / stand / lie. He was crying saying how he couldn’t stand the pain any longer and in my head that at the time WAS an emergency. They said they would only scan him if he lost control of his bladder etc. numbness right down into his foot and pins and needles further up the leg didn’t count as a red flag

That's correct. Separate misconduct issues can often be considered together as a pattern of poor/negligent behavior.

Sickness should be an entirely separate process, unless they have reason to believe that OPs husband is lying about his health.

Update. He’s got even worse and EVENTUALLY is getting an MRI tonight.

they’ve all but confirmed it’s a herniated disc but as he’s now having trouble with pain in his bladder area, they want to check it’s not a more dangerous scenario requiring urgent treatment. But it’s looking like at least a few months away from work (which is probably the least of my worries now!!)

that said, a longer term absence might be in his favour with the disciplinary threats as I feel it’s surely discriminatory to dismiss under these circumstances?

There is a difference between disciplinary and capability procedure.
When employees have a poor attendance and employer will try to establish if this is a long or short term problem.
If it's a succession of minor absences for things like flu or d&v, he might be set an attendance target to meet.
If it's a longer term injury, the employer is obliged to make reasonable adjustments to help him succeed in his job.
However, if long term he can't do the job even with adjustments, then the employer could dismiss him as incapable of performing the role.
If they follow correct procedure with targets and adjustments, that's not discrimination.

OP, whilst there is some good advice here, it is hard for anyone to give you a concrete answer as there are so many variables.

obviously you both need to deal with the acute pain he is in, and hopefully MRI will tell more and docs can suggest best treatment.

it’s unlikely his employer would start formal proceedings straight away; but they might start thinking about it, so as soon as he is able to, I would suggest he :

• contacts ACAS (it’s free) for advice on the warnings - many companies treat misconduct and sickness as separate processes, but that is not guaranteed
• asks his employer for an occupational health referral to independently confirm the current health issue, and provide guidance on a safe return to work when he is ready (if they agree to this, make sure he tells OH about the previous sickness issues so it forms part of their case notes/advice letter)
• considers joining a trade union asap, whilst they may not be able to help with the previous warning, joining now means they might be able to help if he is later given another warning or dismissed

sounds like he’s had a run of rotten luck, so I do hope things start to get better