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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47915
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have been in a my job for 10 months in march I had surgery

Resolved Question:

I have been in a my job for 10 months in march I had surgery which had been encouraged by my employer due to Bupa plan i had. Unfortunately, the surgery was more invasive than originally thought and was off work for 5 weeks. I returned to work, but the person I replaced had covered me whilst I was off as she has continued to work as a consultant for the company. She has critiqued everything that I have done and insisted that it is all redone and told my Line Manager who also deals with HR that I am not doing things her way. She was on holiday for 3 weeks and again once she returned she claimed that everything done need to be redone. if I asked for confirmation of something I am told to refer to the manual which this person has written. Unfortunately it is not complete. I called a meeting with my line manager and advised of the situation and that I was being made to feel like a temporary member of staff and at that one with no experience ( I have working in my line for 15+ years) My line manager would not listen to me and advised that Lisa knew what she was doing I am currently off sick as following the meeting I suffered a severe migraine and my doctor signed me off sick this is my fourth week. My Question is Can they Sack me for this. and do I have any rights as
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

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

Ben Jones :

Can you please provide some more details of the medical condition which signed you off - is it a long-term issue or something which was resolved at the time?

Customer:

The initial sick leave was due to a problem I had with my shoulder following a car accident 19 years ago. I on and off suffered chronic but GP only prescribed stronger pain killers. In January it was particularly bad and my Line Manager encouraged me to obtain a referral to Bupa which I did. I saw the surgeon and had to have two bones in my shoulder shaved and a slight repair to my tendon. Once the bone has fully healed this will be resolved. Unfortunately on the 2nd of may I had someone go into the back of me which has slowed up healing slightly.

Customer:

The currently sick leave is due to stress at work and post op

Ben Jones :

ok thanks let me get my response ready please

Ben Jones :

If you have been continuously employed at your place of work for less than 2 years then your employment rights will unfortunately be somewhat limited. Most importantly, you will not be protected against unfair dismissal. This means that your employer can dismiss you for more or less any reason, and without following a fair procedure, as long as their decision is not based on discriminatory grounds (i.e. because of gender, race, religion, age, a disability, sexual orientation, etc.) or because you were trying to assert any of your statutory rights (e.g. requesting maternity/paternity leave, etc.). In the event that the reason for dismissal fell within these categories, then the dismissal will either be automatically unfair, or there will be a potential discrimination claim.


 


If the dismissal had nothing to do with any of the above exceptions then you would not be able to challenge it and your only protection would be if you were not paid your contractual notice period, because unless you were dismissed for gross misconduct, you would be entitled to receive your contractual notice period. If you did not have a written contract in place you would be entitled to the minimum statutory notice period of 1 week. Your employer would either have to allow you to work that notice period and pay you as normal, or they will have to pay you in lieu of notice.


 


So the key is whether you can show that you had a disability in law and also if the potential dismissal is going to be linked to that.


 


In the legal sense of the word, disability can have a broad meaning and there is no single list of medical conditions that qualify. Instead, to establish whether a person is disabled, they need to show that they meet the legal 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.)


 


If a person satisfies the above criteria, they will be classified as being disabled and will have automatic protection against discrimination. So if you believe that you are classified as disabled and that the dismissal is linked to the specific condition which amounts to a disability, then any dismissal could be potentially unfair and it could also amount to disability discrimination. However, if you do not meet that criteria, they can legally dismiss you as you will not be protected against unfair dismissal due to your length of service.


 

Ben Jones :

May I ask why you rated poor service please, I have outlined your legal position in great detail above

Ben Jones :

Hello?

Ben Jones :

So is that the end of the conversation?

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