Harry’s heart condition
From time to time we tell you about a Birmingham employment law case we have recently dealt with. Our other stories are here. This is the story of Harry, his heart condition and his disciplinary.
We helped Harry to get his employer to remove a first written warning following a disciplinary meeting.
Harry works for a construction company and has over three years’ service. Harry also has a heart condition which he disclosed to his employer at the start of his employment. He is a forklift driver.
One day, Harry was having chest pains and suffering from a shortness of breath. He told his line manager, who just told him to get back to work. He did this but was suffering pain throughout his shift. At the end of his shift, Harry told his line manager that he felt he needed to go to hospital. At this point, the company started taking him seriously. Two colleagues from health & safety told Harry that he could either go to the hospital himself or someone from the company could take him.
Harry had lost confidence in his employer’s ability to deal with the situation, so said he would go on his own. Upon arriving at the hospital, the doctors were very concerned because they could not feel Harry’s heartbeat. Once Harry had informed them of his heart condition, the hospital did a series of tests the next day and concluded that he was fine but that the symptoms could be life-threatening in the future.
Despite knowing where Harry had been on the day of the incident and the next day, the employer took the absences into account in giving him a warning for taking too much time off sick. After an investigation and disciplinary hearing, Harry was given a first written warning which was to stay on his record for 12 months.
We assisted Harry in his appeal against the disciplinary sanction and helped him to lodge a grievance. This did the trick because the employer then removed the sanction completely, leaving Harry with a clean disciplinary record.
Employers should always be aware that a disciplinary process must be fair and impartial for employees with more than two years’ service. This is because an unreasonable decision can breach the implied term of ‘trust and confidence between an employer and employee’, which can allow eligible employees (with two years’ continuous service) to claim constructive unfair dismissal. Those with less than two years’ service may rely on their disability rights under the Equality Act, including the right to reasonable adjustments to the disciplinary process. An unreasonable decision can support a discrimination claim. Therefore, employers should always deliberate carefully as to what is a reasonable decision based on the information obtained throughout the disciplinary process.
Harry was satisfied with the outcome and because the employer reversed its decision on appeal, he was willing to still work for them. His heart condition is not currently causing him any problems.
By Zahid Reza
Image used under CC courtesy of AJC