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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44865
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I was working as a care assitant, and was asked to cover the

Customer Question

I was working as a care assitant, and was asked to cover the kitchen chef duties. i did this for over a year, two days before i went sick i was offered a contract, i disagreed with some parts an did not sign it. while off sick my position has been given to a new employee. where do i stand on this matter
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today. Does this mean you have been dismissed?

JACUSTOMER-x03edg0i- :

No, i have been off sick

Ben Jones :

But when you say your position has been given to someone else, does that mean there is no longer a job for you?

JACUSTOMER-x03edg0i- :

They want me to return to care, and the kitchen position i have done for over a year on saturdays and sundays is no longer available

Ben Jones :

Was it made clear that the kitchen position was just a temporary position?

JACUSTOMER-x03edg0i- :

two days before i went sick i was offered a contract to sign, however i wanted a couple of items altered

Ben Jones :

ok but at the beginning was it made clear that the kitchen position was just a temporary position?

JACUSTOMER-x03edg0i- :

no

Ben Jones :

How long have you worked with this employer in total?

JACUSTOMER-x03edg0i- :

two and a half years

Ben Jones :

what was the reason for the sickness?

JACUSTOMER-x03edg0i- :

i have been of with stress and depression

Ben Jones :

is that a long-trm issue, something for longer than a year?

JACUSTOMER-x03edg0i- :

no i have been off since sept 2013

Ben Jones :

but likely to last for more than a year?

JACUSTOMER-x03edg0i- :

no, i am indending to return in few days , but have been told that no kitchen work

JACUSTOMER-x03edg0i- :

only care work available

Ben Jones :

ok let me get my response ready please

JACUSTOMER-x03edg0i- :

ok

JACUSTOMER-x03edg0i- :

are you still there

Ben Jones :

Your rights will depend on whether the position in the kitchen was permanent or just temporary cover. From what you have said, you agree that it was just to cover someone else, and if this was made clear at the time and no promises or indications were made that it was to be permanent then you will not have permanent rights over it and the employer could ask you to return to your old job at any time. So in this case it is likely that the employer could have asked you to return to your contractual job, unless you can show that you were promised this kitchen job as a permanent position.

Your rights will not be helped by the fact that you did not have the chance to sign the contract offered to you. Until the contract has been formally accepted, the employer has the right to withdraw it, so if you did not manage to do so, they could legally withdraw their offer and you cannot claim any rights over the position or challenge the fact it was given to someone else.

One potential way of challenging this is if you can show that your depression amounted to a disability in law, in which case you would have protection against discrimination. This means that if the reason the employer withdrew the contract for the kitchen position was because of your condition, then it may potentially amount to discrimination, which is unlawful. However, you must be able to show it met the definition of a disability.

The Equality Act 2010 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”.

I will break this definition down:

• Physical or mental impairment – this can include nearly any medical condition;

• Substantial effect – the effect must be more than minor or trivial;

• Long-term - the effect of the impairment must either have lasted or be likely to last for at least 12 months;

• Normal day-to-day activities – these could include anything considered ‘normal’ in a person's normal daily routine (e.g. walking, driving, speaking, eating, washing, etc.)

So if this is something that is unlikely to last for more than a year it will not qualify and you cannot rely on disability protection laws and your rights will be as described above, which unfortunately mean they will be rather limited, unless you can shoe it was indicated the kitchen position was supposed to be permanent.

Ben Jones :

I just need to go offline for 15-20 mins, please get back to e with any comments or questions you have and I will respond as soon as I et back online, thanks

Ben Jones :

Hi I am back, please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this?

JACUSTOMER-x03edg0i- :

Ok last year i badly burnt my arm on a cooker at work, which was the start of my illness, but took no action regarding this other than to enter in the accident book

Ben Jones :

ok but that does not have much relevance to your legal rights in this situation

Ben Jones :

Hi, are you still there?

Ben Jones :

Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this?

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