Sick warning for industrial injury...HELP!!

[chocolateme]

This is a long one so-sorry in advance!!
In 2004 I was injured in work, I slipped on a wet floor that wasnt mopped properly & no warning signs were in place. I have suffered ongoing knee problems since the accident resulting in having to undergo major surgery in Dec 2008, having to learn to walk again etc the recovery was/had been slow. I was off work sick 8mths. I returned to work Sept 2009. I recieved a written warning on 22 April 2010 regarding my sick absence, nearly 7mths after I returned. How can my employers be allowed to issue a warning when;

1 It was an accident that happened at work.

2 The accident has been acknowledged as being an industrial injury & excused for par & pension purposes.

3 Had I not fallen I would not have damaged my knee & therefore not needed major surgery.

4 This case has been settled out of court in a claim.

Hope someone can steer me in the right direction

Well, the fact that it's a work injury is a bit of a red herring really.

What's most relevant is getting a warning letter 7 months after you returned. Sorry if this sounds a bit patronising (it's not meant to), but have you picked up the phone to HR and asked what's going on?

What Ribena said. There aren't really any rules as such about sickness absence and warnings. Lots of companies have schemes where a warning is automatically triggered at a certain level of absence, regardless of the reason.

I think you should appeal the warning on two grounds. Firstly and really most crucially, as Ribena said, issuing a warning 7 months after the event is not acceptable on any level. You are perfectly reasonable to assume that having been back at work with no problems for 7 months, there is no possibility of disciplinary action. If someone is that concerned about your absence levels, they should raise it at the time.

Secondly, you should appeal it on the grounds that it is (presumably) acknowledged by your employer that the absence was entirely their fault, and therefore punishing you for it is unacceptable. Not technically illegal but very unreasonable in my book so worth raising.

Something else to consider is the terms of your settlement agreement. Potentially a warning because of this could cost you money. If there is a redundancy situation, for example, and disciplinary warnings and sickness absences are taken into account, you could end up being made redundant because of this injury. Similarly, if you applied for a job elsewhere for any reason, and then had an offer withdrawn because of your disciplinary warning, you would lose out there. You have obviously taken your employer to court over your injury and settled, but I would be reading the agreement carefully to see what it says about anything like negative action on your employer's part, and any future losses on your part.

Ribena & Flowery thank you for your response.

I have appealed it internally & he has sided with the original decision.

The reason given to me for the wait of 7 mths was that they were waiting to see how I recovered???.... Since I have returned to work I have not been off sick. Further more I have still to undergo more surgery to my knee, albeit minor but with this warning in place I cant go sick for 2yrs from the date of the appeal, so through their fault im being hammered & theyre prolonging my recovery by their actions..

Flowery I must look into what you have said about the settlement agreement.

Surely my employers have a duty of care to provide a safe working environment? How can I be penalised for something that wasnt my fault??

Ontop of all this I know of half a dozen cases where people who have been injured but not in work off as long as me but didnt receive any warnings. Also know of males still in their probationary year with 5+ seperate periods of sick...again no warnings.... There isnt any continuity with the decisions being made by personnel dept.

If you've appealed internally then you've pretty much exhausted your options internally. The choices are therefore simply to write to HR again expressing your dissatisfaction, or to bring some sort of claim, like sex discrimination. The problem with that is that you have no real financial losses at this stage, so it could be a lot of money and stress for not much return.

If you decide to write, happy to help. It would just flag things for the file if they hold the warning against you in future. If this warning is unfair, it may well give rise to a claim if they dismiss you in future (or select you for redundancy) based on that warning.

There is a duty of care for a safe environment, but the obligations aren't diretly related to sick warnings. They're a different thing. You could have looked into a personal injury claim (and it might still be worth a call to a lawyer in that area), but from the little i know, I think you may be out of time.

Update...

I contacted the equality commission & they advised to put in a grievance under the DDA, on the basis that ive been left with an injury, although not registered disabled for the purpose of this act disablement means something youve had for over 1yr that affects your physical ability to carry out tasks or affects your mental wellbeing...lot more to it , as im sure you know!! so this is the route ill try.

Ribena & Flowery Im hoping I can shout for your help???

Erm, what have they suggested you put a grievance in about? The fact that you were warned for sickness absence related to your disability?

The thing is, they know already that your absence was linked to the knee injury, and you've had an appeal where this was raised.
I am not sure what the equality commission think the aim of a grievance is. What do they think it will change as compared to having appealed? Can you/they be a bit clearer?

Under the DDA employers are required to make reasonable adjustments, this includes to their policies.

" Your employers procedures for recording sick absences should separate disability absences from non-disability absences. This is because employers must consider discounting disability related absences when looking at disciplinary procedures, appraisals, emlpoyee reward schemes, references or selection criteria for redundancy or promotion."

They do know the injury was work related but theyre a law onto themselves. They have been promoted to a level beyond their competence! ....Its all to do with that "old boys club" & not going against each other..It may seem draconian but they got where they are by who they know not what they know... Im sooo angry, they think im just something they picked up on their shoe, they have got away with doing this for so long & im not prepared to go down without a fight. They are not following their own code of conduct & discipline....

Yes, I realise that they have to make reasonable adjustments.

What I really meant is that practically what do they think a grievance will achieve. It's not as if your employer, who after all already had the chance at appeal, is going to suddenly turn round and say 'ooh, yes, we were wrong'. I suppose what I feel (and I should say, I strongly agree on what you've said that you are being treated unfairly. This isn't about that at all) is that you might go through all the hassle and time of a grievance, have exactly the same outcome as when you appealed the warning (indeed, the employer may refuse to hear the grievance on the grounds that is essentially re-hearing the appeal). If that happens, I'm not sure that you're any better of legally than if you just write them a stroppy email putting it on record that you think their behaviour at the appeal is wrong.

That's why I'm interested to know what the equality commission thought the appeal would actually do (not the law or what they should do, what it would actually achieve with an uncooperative employer).

I don't mean to sound mean. I just don't want you to be stressed or disappointed. If it helps you emotionally, go ahead with the grievance.

I'm guessing they are advising a further grievance because although you have appealed the warning unsuccessfully, you didn't at that point claim your injury classed as a disability. Effectively you are trying to re-appeal it really, only on different and stronger grounds.

Yes, I suppose so.

Thing is, realistically they are on notice it is a disability. I suppose it lays a paper trail if they have been expressly told and refuse to consider that as a factor.

I'm just a bit concerned that the equality commission seem to have the OP believing that this will give a result, as opposed to probably just being a useful bit of papertrail if things progress. And I'm not sure it's so useful as paper trail that I would do it if it's stressful for her.

Interested in your views Flowery!

I just want this warning off my record! to date I have an unblemished employment record & cant understand why some people cant use common sense anymore, ie line managers. If it makes it any easier to understand I work for the Civil Service so its a big firm! The managers are not abiding by their own rules & theyre making it up as they go along. Its not as if its coming out of their pockets, thats their attitude to things like this! One personnel manager hasnt given warnings to staff who who have more service than him, & then theres me, 15yrs done but obviously still a rookie in this mans eyes, fires out a warning to me without giving due consideration to the circumstances. Oh and as I said before theres also the boys club, no chance of me being in that, theyre exempt from unfavourable treatment too!!

AARRRRGGGGGHHHHH!!!

So infuriating, sorry for ranting, but can you see where im coming from???

I do sound like a right old whinger but im not normally..honest!!

I agree that for the purposes of bringing a discrimination claim, there wouldn't strictly be a need to raise a further grievance putting it in black and white, and bringing a grievance unnecessarily would be stressful and not worth it.

However, the trouble is, just because a tribunal would consider chocolateme's employer could 'reasonably be expected to know' that she has a disability, that doesn't mean they actually do know. Some people are completely useless and although the law doesn't allow for that, it's still a reality.

Chocolateme's last post says it all. "I just want this warning off my record!"

Making sure she is in a position to bring a successful legal claim is a secondary aim at best. Her primary aim is to remove the warning from her record. So even though a tribunal might think her employer should know it's a disability, the fact is it's perfectly possible they haven't managed to engage their brain, and although she legally doesn't have to engage it for them, it may benefit her to do so.

Having said that, I agree a formal grievance would be a nightmare and unnecessary. A simple letter saying something like 'I have been advised that my condition does constitute a disability for the purposes of the DDA so I am taking advice accordingly as to my options going forward.'

So pointing it out in words of one syllable is definitely worth a go imo. They may react along the lines of 'Oh blimey, completely forgot about the DDA, oops!' and then remove the warning. They may not do that - either because they've already decided it doesn't apply or because they don't want to change their minds.

Either way, given what the ultimate aim is, giving it a go is definitely worth it. Not a full grievance, but just putting it on the record briefly.

Yes, that 's a really good idea. It's a variation of what I was thinking a few posts back - not a formal grievance but a note. You're right that flagging the disability is a good idea.

I totally agree that getting the warning removed is the main aim. I guess I was concerned that they are probably not likely to be particularly inclined to do that after a formal grievance of discrimination. The risk is that they 'dig in'.

Difficult situation really, because obviously the is no way of forcing an employer to remove a warning...

Yes exactly.

They might well 'dig in' anyway. I think they are probably more likely to do that if they have to go through a lengthy grievance procedure than if they just have the DDA brought to their attention in a simple 'of course you already know this' kind of way.

At the very least it's worth a go I reckon. It's easy and not particularly stressful to do, doesn't lose anything in terms of options later and there is at least a possibility it might do the trick.

Thanks girls, you 2 are great!

I think the person in the Equality Commission was of the impression that the "threat' of a grievance may just be enough to get them to pull their horns in. However I think I may go down the route youve suggested, and if that doesnt work then I think ill be left with no option other than the grievance route....

Im back again looking more advice girls!!
I lodged a grievance on the 8 June and received a reply on the 10 June stating that they have acknowledeged the grievance but are not accepting it!!! So I lodged it again stating I was resubmitting it as they had not adhered to their own COCD & the DDA, again they refused to accept it! It was posted back to me in an envelope stating the same as they previously stated!! Where do I go now??? Feel like im banging my head against a brick wall! How can I go further than the grievance if they wont even accept it! I know I have to exhaust the 3 steps of the grievance procedure before continuing further but this seems impossible with the way the personnel dept are getting on!!...