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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45327
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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My daughter recently left her job after 5 years as a human

Resolved Question:

My daughter recently left her job after 5 years as a human resources administrator with a large public body.

For most of that time she had suffered from bad migraine attacks causing her to be absent from work on several occasions. Despite the fact that the illness was genuine and she produced the necessary sick notes when required to do so ( on many occasions she had made the effort to attend work despite being ill) the employer used all absences except holiday leave in calculating her "Bradford Score" which I understand is a method of reviewing performance in the workplace and assessing the employee's value to the organisation.

After she had been required to attend several meetings to explain her attendance record we challenged the employer and they eventually agreed that migraine is recognised as a disability under the Equality Act. Following further attacks earlier this year my daughter was required to attend a further meeting at which she was informed that the "policy" was being escalated and that dismissal was a distinct possibility. They recognised that her work was excellent and that she was a key part of the team but said that they had no alternative but to escalate the procedure.

We feel that the employer has been guilty of victimisation over several months if not years. My daughter has been under constant emotional pressure due to the worry of being absent and resultant disciplinary action.

At the final meeting my daughter became extremely distressed and felt she was having a nervous breakdown. Following a discussion with the family it was decided that she should leave the job rather than be subjected to further humiliation and possible dismissal. She had no alternative employment arranged and was in fact signed off work by her GP for the last week of her notice period.

I would like to know whether you consider that a claim for constructive dismissal would have a realistic prospect of success or whether any other form of redress is open to my daugher. She has kept a careful diary of events as well as all correspondence and minutes of meetings. We feel very strongly that the employer should be prevented from treating others in this way.
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. is she seeking work now

Customer:

Hi Ben

Customer:

Yes my husband has given her some temporary work but she is looking for full time employment

Ben Jones :

Hi, sorry I was offline by the time you had replied. As far as the law stands, dismissing an employee due to sickness absence is a potentially fair reason for dismissal under the Employment Rights Act 1996 as it would amount to a capability or even a misconduct issue.


 


However, to justify it as being fair the employer needs to follow a fair procedure and act reasonably. First and foremost the employer needs to comply with any workplace sickness absence procedures and policies. For example these could list the number or duration of absences before formal action is taken.


 


In any event, when considering the fairness of the employer's actions, a tribunal would usually look at the following factors:



  • Did the employer investigate the nature, extent and likely duration of any illness and consult the employee in the process

  • If absences are short-term and intermittent, investigating whether there is any underlying cause (medical or otherwise). If necessary, follow a capability or disciplinary procedure instead, offering practical guidance and assistance, setting timescales for improvement, and giving warnings where appropriate. Only continuous absences should threaten dismissal.

  • Before deciding to dismiss, consider surrounding circumstances, age and length of service of employee together with action taken in respect of similar situations in the past.

  • Consider importance of employee and/or the post occupied to the business, the impact their continued absence is having on the business and the difficulty and cost of continuing to deal with their absence.

  • Consider whether the employee could take up alternative employment or whether there are any other options that would avoid the need for dismissal.

  • If the employee has been absent long-term and is unlikely to return in the foreseeable future the employer should consider claiming under the terms of any Private Health Insurance policy or ill health retirement that is available.


 


Dismissal must always be viewed as a last resort by the employer. Only when it is obvious that the employee cannot continue in their job and that there was nothing else available for them to do would dismissal become a fair option. The courts have held that an important consideration is whether any reasonable employer would have waited longer in the circumstances before dismissing the employee.


 


It is also important to consider the additional rights someone would have if the condition that is affecting them amounts to a 'disability' where they will have automatic protection against discrimination, which means that they must not be treated unfavourably because of their disability. In addition, their employer would have a duty to make reasonable adjustments if they are likely to be placed at a substantial disadvantage when compared to non-disabled employees.


 


So in summary, if the employer has not taken time to investigate the true medical position, whether suitable employment was available and generally considered the effects the employee's continued absence would have on the business, any dismissal could potentially be unfair. In addition, if they have failed to make reasonable adjustments in the event the employee's condition amounted to a disability, this could also amount to disability discrimination.


 


So whilst I understand it would have been upsetting for her to be facing disciplinary/capability action for her absences, over which she had no control, the employer would potentially be able to take such action if required and go as far as dismissal.


 


Whether she has a claim for constructive dismissal is not easy to state, not only because such claims are one of the more difficult ones to claim, but we also do not know what the employer would bring forward as a defence and how the tribunal would view this particular case. There are too many factors to consider to even get close to analysing her chances of success and a risk would always exist anyway. She can of course make the claim but needs to consider all of the above information before deciding on whether to proceed.

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? Thanks

Customer:

Hi Ben

Customer:

Many thanks for your prompt and detailed reply.

Customer:

I appreciate that this area of law is extremely complex and that I am looking at things from a subjective point of view. Are you prepared to take a brief look at the minutes of the meeting in January which I feel gives a more accurate record of events ? I attach these in the hope that you are.

Customer:

The employer is a large police authority so no doubt has adequate resources to defend any claim.

Customer:

I look forward to hearing from you.

Customer:

Many thanks

Customer:

Sorry I can't attach any documents on the system.

Customer:

Could I email separately ?

Customer:

I have emailed the details to the justanswer email address. Hope this is Ok

Customer:

Hi Ben I hope you received my earlier email asking you to look at the minutes of the last meeting my daughter attended -are you able to do this ? Thanks Liz

Ben Jones :

Just looking at them now

Ben Jones :

Ok I have gone through them, it does appear like a typical capability procedure where the employee has had numerous and lengthy absences and is being reprimanded over these That in itself is not unlawful – as mentioned it is possible to take formal action and even dismiss someone for long absences from work, even if it is completely out of the employee’s control. Whilst employees have certain rights and protection in this respect, at the same time the employer will be running a business and they will have certain rights as well to deal with prolonged absences that affect their business


 


So whilst the situation she is in is certainly not ideal, it is not necessarily something that she can just pin to the employer and state it was full blown victimisation when they have the legal right to deal with such issues. The key really is – did they make all reasonable adjustments they could have made in the circumstances to help her.


 


I can still not tell you – yes, go ahead and make the claim, you will have no problems in succeeding, because no one can do that and there are significant risks with a constructive dismissal claim. Also if you want a full case analysis where you are given more accurate prospects of success you need to see a solicitor in person but the fees will be considerably higher.

Ben Jones :

Please let me know if you received my last response above, thanks?

Customer:

Hi Ben Many thanks I will pass your comments on to my daughter.

Ben Jones :

You are most welcome, all the best and feel free to get back to me if you need further clarification.

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45327
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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