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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44379
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hello. I am working for more than 2 years in an international

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Hello. I am working for more than 2 years in an international company with a contact centre (ltd) in the UK. My role has been changed about July last year and I have been told I "can keep" my wages. Since about September we have an absolute nightmare at work. It has been so stressful that several workmates have left and about 20+ new staff have been employed. Now all these people have been squeezed into this one huge office. The pressure level and the noise level is really bad. The tone is also not the best at times. Some people had stress related health issues. So have I. About October last year I had my first ever migraine attack and was not able to work for a few days. A few weeks ago the doctor diagnosed me with with a depression caused by work related stress (which he wrote on one sick note). I was off sick for 14 days. Even though October in the last time were caused through work, I have not been paid for it, which I understand is company policy. I cannot find clear advice what my rights as an employee are. Our HR requested my medical report and I had to sign for it. The doc was puzzled by this. He said usually Occupational Health would request it and who would be qualified at my workplace to actually read it. There is no one. HR said they would look at it and if they think it would be necessary go to a local Hospital or other place to get Occupational Health. We have got no Union or in house doctors. Now I just have been signed off work again for the last 3 days and still not feel very well. I kept a diary with things said to me over the last weeks. My partner things some of it is close to bullying, knowing I am ill. I am being treated really low and all they say is, that currently everybody needs to do things they don't necessarily like. I have also visited the CAB and they only advised me to put in a grievance. I don't want to cause trouble, as the HR person is actually someone I have been able to talk to about problems and issues in my life in the past and I don't really want to cause her trouble. My line manager though is the one, who cannot really control himself. He said the other day in front of my desk and in the middle of other desks "I don't see why I should treat you any different than the others", after I explained to him that I had felt stressed again coming of the phone after 1 h conversation with one person. It never has been purely my job to take phone calls.

HR suggested that I should go on part time and I had to sign a new contract, now working some evening shifts and at least 1 Saturday a month. So I am already trying to look after me, but many hours on the phone with unhappy customers is bad. Also building works are going on and sometimes drilling etc is really loud and bad. They will extend the office in about 6 weeks so the noise level will spread. Right now every day I have to go in there I hate it so much, that I have stomach pain and other muscle aches.

My question is now, can I protect myself? Will I be automatically protected when I hand in this grievance? Can they actually do a disciplinary on me being ill that much? Have I got a legal right to see Occupational Health? What can I do other than looking for another job and hand in my own notice? One of our guys who has been in the firm for over 10 years had the same issues. Depression, reduced hours and now he handed in his notice.
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. Do you have Occupational Health in your workplace or does your contract or a policy state you are entitled to seek assistance from them?

Please note that it is a very busy night this evening and I am the only employment lawyer on so there will be a delay in responding but I will get back to you sap, thank you


Hello Ben. Thank you for getting back to me that fast. Unfortunately neither my contract or anything else says that I am entitled to seek assistance of Occupational Health. Also we have not got this service in our firm.


My name is Petra.

Ben Jones :

Hello Petra, thanks for your patience. It is not a formal requirement to have OH in your workplace or for qualified professional to determine doctors’ reports you have provided. It is entirely possible for the employer to have no dealings with OH at all and take all decisions about your employment that relate to your health themselves. For example, many small employers will not be able to afford to pay for OH involvement and it could simply come down to you getting signed off from work, or having a report or suggestions done by your doctor and considering them and applying any changes or adjustments as necessary.


Whilst stress in the workplace is becoming an ever-increasing problem, no specific legislation deals with it. The rights of employees in these circumstances are scattered across various legislation and common law examples.


A good starting point is to look at The Health and Safety at Work Act 1974 and related statutory instruments, which impose a general duty on employers to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees. This includes a duty to undertake risk assessments and manage activities to reduce the incidence of stress at work. In addition, under common law an employer owes a duty of care towards its employees, the breach of which can amount to negligence.


As no standalone claim exists for being exposed to stress, the affected employees have the following options open to them if they were going to challenge their employer over this:


1. Grievance - this is a formal internal complaint, following which the employer is obliged to investigate the issues and deal with them in an appropriate manner. It should always be the first step in trying to bring the problem to the employer's attention and to try and reach a resolution.


2. Constructive dismissal - this occurs where the employee resigns because they feel they were left with no other option in the circumstances. Further considerations include:

  • It must be shown that the employer had acted in breach of the implied terms to provide a safe system of work or through their actions (or inactions) had broken the mutual trust and confidence

  • The breach relied on must be sufficiently serious to justify instant resignation

  • This claim is only available to those with at least 2 years' continuous service with their employer and must be made within 3 months of resigning.


3. Personal Injury - this is a claim for negligence against the employer. Further considerations include:

  • Some recognised illness must have been suffered. This could include clinical depression, specific trauma stress, a physical injury (e.g. stroke), etc.

  • The illness must have been caused directly by the employer's negligence, such as failing to appropriately deal with managing stress in the workplace

  • The illness must have been reasonably foreseeable - for example if the employee experienced one breakdown, that would have indicated to the employer that there is a problem and that further issues could arise if things were not dealt with appropriately.

  • The time limit to claim is 3 years from the time the injury was suffered.


In the first instance, I would advise going down the grievance route first and only consider pursuing legal action as a last resort if it is evident that the matter cannot be resolved in any other way.


Also if you raise a grievance it does not mean they cannot take any disciplinary action against you – there is nothing stopping the employer from doing so but the fairness of such action could be challenged, especially considering the reasons for you absence.


Thank you for your answer. Would you please let me know how these disciplinary actions could look like and if there is some kind of trigger or would that be completely up to the Employer? As a German native I am kind of shocked about this legal hole.


How could this decision from termination of my contract if it comes so far be challenged? Would you know of any costs which could arise if it would come to a tribunal?

Ben Jones :

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.


There are no specific triggers that would start such action, it is for the employer to decide on these but again they must follow the general rules of fairness, or there could also be a specific policy which states specific triggers.


If you are going to make a claim in the tribunal then there would be certain fees associated with claiming, such as claim fee and hearing fee, which could be more than £1,000 but if you win you can get these back from the employer.


Ben Jones :

Hello, I see you have accessed and read my answer to your query. 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?

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44379
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and 2 other Employment Law Specialists are ready to help you
Expert:  Ben Jones replied 2 years ago.
Hello Petra, please let me know if I have answered your original question or if you need me to clarify anything else for you in relation to this? Thank you

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