18

ME and absence management

George

| 27 Posts

Chartered Member

30 Apr, 2014 23:45

Hello All,

I have a wee problem close to home and need some objective thoughts.

My wife works in a clerical post with the Civil Service. She has suffered from ME for about 30 years but her attendance has not been bad except for a period of a few weeks about 3 or 4 years ago. However having been off for a few days recently her manager arranged a meeting with her yesterday and she was given a written warning for her absence.

My wife has had 6 days absence over three episodes in the past year. I have worked in the Private Sector and currently work within NHS in Scotland and I was completely taken by surprise.

Can you tell me if this seems reasonable? We certainly plan to appeal it.

In the past my wife was given extra days allowance for sickness due to her medical condition. However her manager has said that as she has managed without the extra days for the past few years HR have said she should not be given them. I would have thought that would have been a reasonable adjustment.

When she had the long term absence a few years ago she was referred to an OH doctor who agreed with her GP that she needed more time off. However she was told by management that if she did not return to work immediately she would attend a meeting where a decision would be made which could lead to her dismissal. She therefore returned to work not fully recovered.

I have seen my wife go into work on days when she has not been well and feel this is a harsh reward for all her efforts.

Can you please give me an unbiased view?

Best regards,

George
  • Steve Bridger

    | 6478 Posts

    Community Manager

    30 Apr, 2014 23:53

    George,

    I read your post as it came in late tonight, and I'm saddened by how (on the basis of the infomation you have given) your wife has been treated.

    It sounds unreasonable to me on first reading; to say the least.

    I'll let colleagues chip in with their thoughts below.

    To put it into context, my daughter's teacher has had a several months off work during the academic year - first extended compassionate leave, then for a broken ankle. I know the scenario is completely different, but what your wife has been through would seem disproportionate.

  • George

    | 27 Posts

    Chartered Member

    30 Apr, 2014 23:59

    Thank you Steve and surely you should not have to be working at this time.

    Your input is appreciated.

    Goodnight,

    George 

  • Steve Bridger

    | 6478 Posts

    Community Manager

    1 May, 2014 06:39

    In reply to George:

    It's how I roll :)

    I blame the iPad.

    (Other tablets are available) 

  • Ruth Gibson

    | 279 Posts

    Chartered Fellow

    1 May, 2014 09:17

    George,  my understanding that absence in the civil service is reviewed on a rolling basis over a 3 or 4 year period and your wife's recent absence may have been a trigger for the warning.  However, I too think that issuing a written warning is harsh and there should have been both a return to work discussion where the manager would have raised this concern with her.  I would suggest perhaps that your wife refer herself to occupational health to be assessed in terms of the ME.  There is also an issue regarding the additional absence your wife may qualify for if she falls within the statutory definition of disability. If my memory serves me well the correspondence should provide your wife with the Appeal process (particularly if it is a formal written warning).


    I should add, sad this may be that it is important that your wife's ME is made known, so that reasonable adjustments can be made and consideration as to the possibility that future absence is likely.

  • Keith

    | 8852 Posts

    Chartered Fellow

    1 May, 2014 10:22

    I think there are two linked but separate things here.

    The "rigid" application of an absence management policy along the lines of Bradford that has been triggered by your wifes 6 days/3 absneces. This could well have tipped her over a target for management review. (BTW I dont like Bradford much) that a manager has then failed to look at any mitigation but simply gone down a route of you are over the target therefore its a written warning. If this is the case then this is challengable and probably unfair.

    Her disability under the Equality Act and any action they could / should have taken to make a reasonable adjustment in either her work and/or their absence management targets in relation to her. They dont appear (from what you have said) to have made any reasonable adjustments and I am at a loss as to why they felt in the past they needed to and now dont. The reason given that she hasnt needed them in past few years is certainly challengable given that ME is not a linear condition (as far as I am aware).

    So I think the organisation has acted crassly and probably incorrectly.

    However.....of course being disabled even with protection under the EA doesnt give anyone teh right to unlimited time off and if the absences were unconnected (probably would need medical evidence - surprised they havent refered her) to her ME then there is little stopping them taking action in line with other policies although it is of course a risk to do so.

  • David Perry

    | 4602 Posts

    Chartered Member

    1 May, 2014 17:15

    A good example of the Bradford Factor at work plus 'Computer Say Discipline'
  • David

    | 19094 Posts

    Chartered Member

    2 May, 2014 06:28

    Hi George

    My stepdaughter works as a junior civil servant too,  and faces similar draconian and seemingly crass rules, ordained by the remote God-like  corporate machines there which are HR.  No -one seems to care that the whole outfit seems to be led by a motley bunch of buffoons whose rise up the civil service ladder has been automatic so long as they work there  for long enough and don't upset the Gods over in HR.

    Best thing your wife might ever do if she hasn't yet is to join the recognised trade union in her workplace and to get some acknowledgment from her employers OH advisers in consultation with her GP ideally  that her illness counts as a disability under the Equality Act. If it does, then this dept of state becomes bound by the Public Sector Equality rules, any invocation of which in a disability discrimination context should send even their HR Gods scurrying back to Mount HR to hide behind the rocks and in the caves and to alter radically the edicts they send down about her to her managers. Notwithstanding this, they are also directly bound by eg the European Human Rights rules.

    Worst thing you or your wife should do is take it personally - try to treat it all as a surreal, Kafkaesque game, and make sure with your and the unions help that she plays it effectively and doesn't get fouled.
  • A game, yes, but surely not "Kafkaesque", David.  After all, despite a monolithic bureaucracy's best efforts, the individual still has a clear ability to influence the outcome.

    It's like playing a game of Monopoly with eight players.  Your odds of winning at the start can seem pretty pathetic.  But if you can secure all four stations, you've pretty much got it in the bag.

  • George

    | 27 Posts

    Chartered Member

    2 May, 2014 13:57

    I would like to thank you all for your replies. It is good to hear your points of view and advice.

     David you have hit the nail on the head as you so often do.

    I should have maybe said that a few years ago my wife reduced her hours to help her cope with the ME and that was seen by her employer as a reasonable adjustment and I would agree with that.

     

    I didn't mention that she has already been referred to Occupational Health and asked to go her GP. So her employer has a report from OH but unfortunately it does not mention that her illness is deemed to be a disability.

    ME being a disability I was wondering if I have a right to accompany her to the appeal meeting. The policy only allows TU rep or colleague but I recall reading a few years ago of a case where an ET ruled that carers must be allowed to attend such meetings. Her condition can make concentration difficult so it would be good if I could be with her at such a stressful time.

    Can anyone confirm and direct me to the case so I can quote it in our appeal?

    My wife and I are heading away for a few days to celebrate my forthcoming significant birthday and I will probably not have access to email.

     Thanks again for your responses and I hope you all have a good weekend.

    George 

     

  • The Guidance issued by ACAS that sits alongside the Code of Practice on discipline and grievance I think refers to making adjustments to who can be a companion on the grounds of a disability and could be useful?

     

  • David

    | 19094 Posts

    Chartered Member

    7 May, 2014 07:32

    Just to observe that some of the confusion re right to a companion I think arises from the specific and freestanding right in statute crossing the path of another statutory right of disabled employees to be allowed 'reasonable adjustments'.

    For example, an employee with hearing and mobility difficulties is due to attend a formal grievance hearing. It's entirely legitimate if employee wishes to bring two companions eg one a TU rep as under the former right and the other a carer / helper under the latter.
  • Julie

    | 8 Posts

    Chartered Member

    7 May, 2014 09:15

    Hi George


    I was dismayed to read your post. I too have ME/CFS, I was diagnosed following a nasty bout of flu about 4 years ago. At my last OH meeting I was told that my condition was deemed to be a disability under the Equality Act as it is a long term illness. There is provision under the Equality Act for a long term illness to fluctuate,


    I have had some pretty terrible years, but now on a good run. I was given additional time off to help with the illness and although I am not using them at the moment, they remain at my disposable in case another episode presents itself - this is my organisation's reasonable adjustment.


    I would definitely recommend that she joins her recognised trade union. I too suffer from cognitive issues, and my trade union have been fantastic in supporting me when meeting with the organisation and reaching good decisions.


    Good luck!


    Julie

  • Really sorry to hear of your wife's situation and hope you can get a suitable resolution.

    I do feel the warning is unreasonable and agree you should appeal against this. 

    As Julie pointed out, their is provision for fluctuating conditions in the Equality Act and CFE/ME almost certainly comes under this. It is a long-term condition and during her relapses I am sure your wife does have difficulty with day-to-day activities, so I would be fairly confident she will be protected on grounds of disability.  

    The fact that OH suggested additional time off is a suitable reasonable adjustment in the past, but her employer has since withheld this adjustment is definitely something to raise. Although adjustments should be regularly reviewed and it could be deemed reasonable to remove this adjustment if your wife had been in a remission period, as soon as there were signs of a relapse it would be wise of the organisation to reinstate this. With a fluctuating condition with nothing to indicate when the condition may change it would have been sensible to leave adjustments in place even if they were not being used as unfortunately for your wife, relapses are part and parcel of the condition and there was always the risk that she would need that adjustment again in future. 

    Not sure of any rulings regarding carers attending disciplinary/appeal meetings, but I would think it would be a sensible "reasonable adjustment" to policy to allow your wife to take you with her. Maybe she could make the request in that way calling upon the equality act as opposed to any other ET ruling? 

    Sorry I can't offer much new advice on anyone else, but good luck with it and hope your wife has another good period where she won't need the adjustments again soon!

  • George

    | 27 Posts

    Chartered Member

    27 May, 2014 22:40

    Thanks to everyone for their input. Appeal now in. For general  information ME / CFS is classified as a disability:

    The following extract is from the Scottish Good Practice Statement on ME-CFS formally endorsed by the Royal College of General Practitioners (Scotland) and the Scottish Neurosciences Council and published by the Scottish Government in 2010. Similar information exists for England and Wales, North America and Europe.

    "...It causes significant ill health and disability in a substantial number of adults, young people and children. It can affect both sexes, at any age, from any ethnic group. Epidemiological evidence is lacking in Scotland but a population prevalence of at least 0.2‐0.4% is widely accepted and over 20,000 people in Scotland may be affected. It is more common in women and in patients aged from 35‐55 years. It has characteristic features which can be variable among patients. It is also variable in its duration and severity, with a substantial number severely affected… the crucial point is that the NHS recognises that ME‐CFS is real, associated with altered neural functioning and causes significant and in some cases, profound disability. As such, it places a substantial burden on people with the illness, their families and carers and on society."

    Equality Act (2010) and page eight, section A6 of the guidance which states:

    "... A disability can arise from a wide range of impairments which can be..... impairments with fluctuating or recurring effects such as rheumatoid arthritis, myalgic encephalitis (ME)/chronic fatigue syndrome (CFS), fibromyalgia, depression and epilepsy..."
More Content