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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44950
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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If a member of staff has been employed for less than a year

Customer Question

If a member of staff has been employed for less than a year and goes off on sick leave with alledged work related stress do they have a case (especially if it can be proved that the work load was very low but they have been asked to do a job that they dont like).
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today.

Hello, my name is Ben and it is my pleasure to assist you with your question today.

Before proceeding please note that as I am a practising solicitor, I am often in and out of meetings, travelling between clients or even at court when I pick your question up. This may even occur at weekends. Therefore, I apologise in advance but there may be a delay in getting back to you and providing my advice. Please be patient and I will respond as soon as I can. You do not have to wait here and you will receive an email when I have responded.

For now please let me know how long he/she has actually worked?

Ben Jones :

Hello can you please let me know what 'case' are you referring to - whether they can sue you in any way?

JACUSTOMER-30ozye1s- :

We have a receptionist who started here September 2012 - basic duties answering the phone, liaising with tenants and landlords for repairs and distributing post.

JACUSTOMER-30ozye1s- :

She has been employed since Sept 2012 as a receptionist - she answers the phone, liaises with landlords and tenants on reporting repairs and distributes post. we have been monitoring sick leave since january 2013 and she has had 21 days sick leave up to and including this friday.

Ben Jones :

Employers have certain duties under the Health and Safety at Work Act and under common law to take reasonable care to ensure the health, safety and welfare of their staff. This would also include preventing or reducing the causes of workplace stress.

Whilst employees that are subject to workplace stress can take formal action against their employer, this is not necessarily easy to do. There are three main claims that can be made: personal injury or constructive dismissal.

1. Personal Injury - the following requirements must be met:

  • The person must have suffered a recognised psychiatric illness, such as clinical depression.
  • The illness must have been caused by stress at work and no outside factors.
  • It must be shown that it was reasonably foreseeable by the employer that the employee would develop a mental illness (bearing in mind that an employer could assume an employee can withstand the normal pressures of working life)

2. Constructive dismissal - the following requirements must be met:

  • This is only an option if the employee has had more than 2 years' continuous service with the employer, which is not the case here

3. Disability discrimination:

  • The employee must show that they had a condition which amounted to a disability in law
  • The Equality Act 2010 (“EA”) defines a disability as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.
  • To claim they must show that you were or should have been aware of their condition, that you did not make reasonable adjustments to try and help them or that you treated them unfavourably because of this condition

From what you have said she will only have a potential claim if she can show that there was a serious condition at play here, such as depression or something more serious. This is something she will need to back up with medical evidence so at this stage it is certainly not clear if she will have any claim against you.

Ben Jones :

I hope this has answered your query and would be grateful if you could please take a second to leave a positive rating - your question will not close and I can continue providing further advice if necessary. Thank you

JACUSTOMER-30ozye1s- :

what I really wanted to know was did she have a claim against the company bearing in mind she has only worked here for 12 months

Ben Jones :

the length of her service is only relevant in relation to a claim for unfair dismissal or constructive dismissal. Claims for personal injury or discrimination will not depend on her length of service

JACUSTOMER-30ozye1s- :

If a member of staff has had an unreasonable level of unrelated sick leave, would i be in danger of being sued for unfair dismissal if I got rid of her (if she had only been employed for 12 months)

Ben Jones :

she cannot claim unfair dismissal if she has less than 12 months' service with you. However if the reasons for her absence are due to a condition that amounts to a disability in law then you may be sued for disability discrimination. So you have to consider whether her condition can amount to a disability:

https://www.gov.uk/definition-of-disability-under-equality-act-2010

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