Suspended whilst off sick
I have been off sick following major surgery for 11 weeks. Work pushed for my return by booking me in to see the Nurse. I attended the appointment last wednesday and agreed a phased return to work commencing in a weeks time. No sooner I left the meeting, I was contacted by a Manager asking me to come back into work, as he needed to speak to me that day face to face.
I went to see the manager who told me that he was suspending me from work, although I still had a sick note covering me for another week. He said it was regards an inccident and 3 people were involved, of whom I was one. There had been an allegation that I had disclosed details of managers salaries to 1 of the colleagues, I do not know the involvement of the other, they will not say. I pointed out that I had not been in work for 11 weeks and they said the incident happened 4 months ago, however had only been brought to their attention a week ago.
The allegation is false, however they are saying that 1 person is saying it is true. Although on sick leave they made me attend a investigation meeting and questioned me like a criminal. After the meeting the manager said he should be able to get back to me by friday.
On friday he called me back and questioned me further, Both occassions reducing me to tears. After the second bout of questioning I was asked to attend today to sign my statements. Again, I did as asked although I am signed off sick by my Dr. The manager said I should receive a letter the next day telling me whether I would be subject to disiplinary action for gross misconduct. He however called me back at the end of today and said he decided that I should face disciplinary action, therefore I was required to attend a disciplinary hearing on friday and that the letter was in the post tonight.
Please can someone offer me some advice? Did my employer have the right to keep calling me in when I was signed off sick? Do they have the right to discipline me for something that supposed to have happened 4 months ago but has only been reported just over a week ago. I feel like I have been set up and do not know which way to turn. I am already very depressed as a result of my illness but now I am finding it hard to cope.
I am afraid that the answer is yes. Being off sick does not mean that they cannot suspend you, run an investigation into you, or hold a disciplinary. If you were not fit to participate in this you should have (and need to) obtain a letter from the doctor saying that you are not fit to attend the disciplinary. They do not have to pay any attention to such a letter but they would be rather foolish not to - at least for now, although they do not have to postpone for ever.
In terms of the allegation, again, yes, they can invetsigate something that happened some months ago, especially if this has just been brought to their attention. It is obviously not in your favour if there is evidence that you did do this, so if you can show that the wirtness statements are unreliable it is very important that you do so. An employer does not need evidence to show that you did something - only reasonable belief. And statements from other staff saying that you repeated this information to them may be believed.
Thanks for your response shikahra.
The individual who I am supposed to have told this information to sits next to me and can easily see my screen whilst I am working. This is not my fault though. Management have put me in this position. They expect me to do work of a confidential nature in an open plan office. I have told them this yet they still pursue this claim against me. I have to print this information off on a shared printer that is away from my desk and that people can get to before me. People could have also seen this information in this way. I have been set up I am sure but how can I prove this if someone who sits next to me is saying I have told them?
Another thing is that whilst I have been sick I have had to share my passwords with this individual and a temporary worker because the organisation does not have enough licences. As a result of this they could have accessed this information. We also work to SOX compliance which means we should not share passwords, however they insisted.
My situation is becoming more and more distressing.
The manager who did the investigation meetings told me yesterday when I had to sign my witness statements that he would not have to contact me anymore, the notififcation of the outcome would arrive today in the post. Approaching 4pm yesterday the manager then called me to say that he had decided i should face disciplinary action, even though he said he wouldn't call me again. He then said i would have official confirmation in the post today which I should read.
This morning however, the manager then called asking if I was going to be in today, as they needed to give me the letter that they had said previously would be in the post. I informed him I was going to an appointment and asked me what time I would be in this afternoon. Considering what was said previously, I was not going to rearrange my day to suit them, so I told him I do not know. He then started to become nasty saying he just wanted to give me more time to prepare. I informed him I had a letter box so why not post it through there, what was the problem. He said fair enough and hung up. The letter has not arrived as yet.
I am supposed to have the hearing friday. If they are sending it by post today, I will not get the documents till late tomorrow as our post is always late. Can I request that they rearrange as I had not had sufficient time to prepare? Also as I am now very stressed, as well as trying to recover from my surgery. If I see my Dr and he signs me off with stress, can this be good enough reason to postpone the hearing? I just do not think I can cope with all this anymore. I do not know how I will be able to get through the hearing.
You will need your doctor to say that you are unfit for the hearing to ask for a postponement - a sick note on it's own isn't enough. The same goes for the time to prepare a defence - the law doesn't set a certain level of notice and you need only be given a reasonable amount of time, with reasonable not being defined. So two days may not be enough for one case and enough for another. The points that you riase in terms of security etc are all legitimate points of defence. Whether the employer will accept them, or will take your word over the other persons' I can't tell you. In the end that is up to them, and possibly a tribunal, as to whether the evidence supports the allegations or not.
If I am disciplined following this hearing, considering the points I have raised regarding security of information, do I have a case to bring to tribunal?
It has been suggested to me that by allowing this information to be dealt with in an open plan office they are breaking the Data protection act?
On the first - possibly, but it is by no means certain. If there are witnesses against you who say you did it, that establishes "reasonable belief" which is sufficient for an employer to defend a claim. In the end it would be up to a tribunal but it is by no means certain which way it would go.
On the second - no, and even if it was the case, the DAP has no real teeth. At worst they would get a slapped wrist.
Thanks for the advice shikahra.
This just seems so unfair. Anyone can make up a story then and get someone to back it up and the victim is defenceless. They said the figures I am supposed to have disclosed are close to the real thing, but the fact that one of the people involved sits next to me and can see my work as I can hers is not my fault. She also has my passwords.
The second person involved is also a member of the HR department, although she does not reside in the HR office, she regularly goes in there to file information for them. She also deals with all the plant managers emails so could have seen information in this way.
I am certain these two people have fabricated this against me, but it seems I have no chance of proving this.
If they dismiss me I know I have a right to appeal, but again this can go against me. I will only be repeating what I already have to say again. I need to work as I have a mortgage alone. When a completing a reference request, will they have the right to disclose I was dismissed for gross mis-conduct?
If this conversation between you and the other person took place 4 months ago why would this person raise it so long after the event?
Yes they will.
But please be clear - whatever the employer decides is reasonable belief is not the same thing as convincing a tribunal of it. I am being very honest - I don't know whether they could convince a tribunal or not - but that does not mean that they can! I think you have some grounds for a claim, just not certain ones to win.
I did not have the conversation though. I am being accused of having it.
This is what I asked them in the investigatory meeting. I did not get a response.
All I know is that I was due to return to work tomorrow from being off 11 weeks and now this has happened. They were the ones pushing for me to go back and see the nurse and plan a phased return.
Thanks shikahra. I feel like resigning to end all of this, but I have read other posts on here and I understand that a reference will still state that there were issues.
I just cannot see how I will overcome this. It also puts in question my proffesional reputation I could be thrown off the 2 accountancy bodies I am registered with. The one I am already a member of and the second I have just applied for full membership for and they have to verify so I get accepted. This is going to ruin me.
Resigning has to be the worst thing you can do. You will stand no chance at a tribunal if you do. I wish I could tell you that thee are guarantees here - but if dismissed your only chance to clear yourself is to get a ruling of unfair dismissal, so it may be a risk, but it is one you may have no choice but to take. At this stage all you can do is put up the best defence that you can. Sorry.
Thanks shikahra for all your help and advice
Hi shikahra can I have your advice again please.
My disciplinary hearing was due to take place today, but my DR signed me sick for 6 weeks as I really am finding this difficult to cope with. I rang and told my employer and they agreed to postpone. However today they have sent me yet another letter with company policy. They are requesting I see the works nurse on Wednesday. When I called my HR department about this they said they want an opinion on my health and whether I can attend a hearing. My Dr has already signed me off, he has put me in touch with a counsellor and prescribed medication. I wanted to try and attend the hearing next week, just needed time to get myself together a bit better but all this badgering from them is making me worse. Can they question my Dr's recommendation? They also told me I was suspended on full pay, however they are now taking away my pay. They have said because I have gone sick then I'm not entitled to my pay, if I had turned up to the disciplinary ad they had asked then they would have paid me? Is this correct?
Since receiving the formal notification, I have received the witness statements. It appears the individual sat next to me has said I have told her confidential pay details. I have not. I am sat next to her in an open plan office where she can see my screen. She has also had my passwords why I have been sick. Also I have to print such information off and its possible someone has seen this information in this way. Am I likely to be able to claim unfair dismissal if it occurs, with this in mind?
Also, the third person involved was the plant and hr mangers administrator. It so happens that this individual who sits next to me had been discussing pay details with her. In return the secretary had been exposing confidential information contained in the plant mangers mails, to her. In spite of this, neither of the other two individuals were suspended, only me. This means they were left in the work place and I feel could have now interrupted the process because they may have been able to forge an alliance with other individuals to stitch me up further.
The whole reason this has come to fruitition, is because the administrator told an hr officer because she felt under paid. The officer then sent her back to the the other individual to find out who was the source and she said it was me.
Can you advise on all of this please? I just need someone elses opinion on it as it is driving me insane.
Your doctor can only provide an opinion - it isn't law - so they can certainly take their own medical advice as well. Having been signed off sick does not mean that you are unable to attend a disciplinary, and whilst postponing it was advisable, they do not have to do so for ever. But yes, they can now redce your salary to sick pay. You are not suspended on full pay - you are suspended on your normal terms and conditions. If you were sick at any time, you would get sick pay, and the same applies now. Attending the disciplinary or not isn't relevant to this issue - you are only entitled to xisk pay for any period you are sick. Obviously, how much that is depends on your terms and conditions.
As for the rest, well that is your defence. I cannot tell you whether they will accept it or not, but that is the point of the disciplinary. I still believe that a dismissal on these grounds would be unsafe - not a slam dunk winning case, but good enough to challenge at tribunal.
Just to clarify, have they reduced your pay to your contractual sick pay, or stopped it completely (or perhaps reduced to SSP only, if that is below the level provided by your sick pay policy)?
My thinking is that the employer may view this postponement as being at your request, and so are under no obligation to continue paying you (other than statutory SSP requirements).
I am assuming I will get SSP.
My organisation have the Bradford Factor points scheme in place. I have been off for surgey for 3 weeks and another 11 for my major surgey, in a 12 month period. I will not be needing anymore surgery now. I was due back to work wednesday until they hit me with this, but I cannot cope with what they are accusing me of.
I have been there 15mths and in that time I have seen 3 people suspended never to come back. I know what they are like and what is coming.
I am not entitled to company sick pay because I have not been there 3 years and also because of my points stacking up against me. Though my reasons have been genuine and I have given them all the details and notice way in advance to plan for it.
I am afraid that when it comes to sick pay entitlement "genuine" reasons for being off ill count. So basically, provided they adhere to their contractual arrangements, if your entitlement doesn't qualify you for sick pay then you are only entitled to SSP (or the relevant state entitlement) for as long as you remain off sick
Hi shikahra, can I ask your advice please?
I am currently trying to prepare points of defense for my hearing as I feel when I see the nurse on Wednesday they will force the hearing for Friday.
The fact that the other 2 individuals involved in my case (the one accusing me and the other who alerted HR and was found to be disclosing plant and hr managers confidential information to the accuser) were not suspended but only me, am I correct in saying that this could be seen as discrimination?