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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47365
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Can your employer advertise your job, when you are on sick

Resolved Question:

Can your employer advertise your job, when you are on sick leave?
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long have you worked there for and what are the reasons for being off on sick leave?
Ben Jones : Just travelling home so will respond as soon as I have a permanent signal, thanks
Customer:

I have worked at the school since 2001 and have been on sick leave since March 21st 2014, due to stress at work, on Med 3 cert.

Ben Jones :

Thanks for your patience. Just to check – is your job unique, in a sense that if the employer advertises for it, does it mean it is more or less guaranteed they are looking to replace you, rather than to get someone else to do the job alongside you?

Customer:

Yes to replace me, as there is not enough capacity in the school to afford another full time teacher. there is one head of dept. one full-time teacher and one part-time teachers of Science.It is a three form entry school. I was the other full-time teacher of Science.

Ben Jones :

ok thanks let me just get my response ready please

Ben Jones :

This could potentially amount to constructive dismissal, which occurs when the following two elements are present:



  • Serious breach of contract by the employer; and

  • An acceptance of that breach by the employee, who in turn treats the contract of employment as at an end. The employee must act in response to the breach and must not delay any action too long.


A common breach by the employer occurs when it, or its employees, have broken the implied contractual term of trust and confidence. The conduct relied on could be a single act, or a series of less serious acts over a period of time, which together could be treated as serious enough (usually culminating in the 'last straw' scenario). Trying to remove an employee behind their back, without having followed some sort of a fair procedure on removing them through performance or capability action, could amount to such a breach.

You have a few options in this situation:



  • Challenge the employer, perhaps even raise a grievance and try to resolve this directly with them

  • If you believe that this has made your position impossible and you cannot continue working there as a result then it is potential constructive dismissal and you can resign and make that claim in the employment tribunal

  • You can let them take this further and see where they intend to go with this. If they dismiss you just to get the replacement in then you can consider claiming for unfair dismissal


Customer:

Thank you, ***** ***** instruct my union to act for me. I have not agreed to leave the school and they have not informed me of a fair procedure to dismiss me, even on medical grounds.

Ben Jones :

a fair procedure must be followed, even if you cannot return to work - they cannot just go ahead with a dismissal and the fact they appear to have reached a decision before even talking to you or exploring any options will certainly work against them

Customer:

Thank you for your advice, it is very much appreciated.

Ben Jones :

you are most welcome, all the best

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