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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48740
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Daughter suffers from brittle asthma. has worked in

Resolved Question:

daughter suffers from  severe brittle asthma. has worked in employment now for 4 years but work have now decreased her hours to 18 due to all the time she has off, in and out of hospital. She is finding it increasingly worse working for them and is in fear that they are wanting to get rid of her. she has had a new contract which also includes a probationary period of 6 months. Can this be allowed after working 4 years for them.  Also what is the legal information regarding working with this illness in the work place.   Can they legally dismiss her on this basis.  she works with children in a nursery,

Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Can the employer do anything to help her such as change her duties rather than reduce her hours?
Customer: replied 2 years ago.

Hi Ben

my daughters employer have tried to help my daughter. Flexi hours, moving department etc, the problem being is she works in a nursery and they need ratio staff compared to the children they have, so if my daughter was to have an attack that leaves them short. Problem being is we don't know when these attacks are going to happen, 9 times out of 10 she will end up in hospital. They have reduced her hours now but if my daughter does phone in sick they are starting to get a bit sarcastic about it. What legal rights does she have if they do dismiss her? Many thanks

Customer: replied 2 years ago.

Also concerned regarding her new work contract, can they legally put her back on probation after 4 years? just hope this is not an excuse to dismiss her due to her illness?

Expert:  Ben Jones replied 2 years ago.
Is she happy to reduce her hours or does she object to that?
Customer: replied 2 years ago.

Hi she didn't have a choice in the matter regarding her reduced hours. The manager said clearly to her that she could not afford to keep covering her shift and that they thought her health would have improved by this point due to a treatment that could have been offered in hospital but unfortunately this treatment is no longer an option for my daughter. My daughter agreed to reducing her hours as she is scared for her job, also she felt there was no other choice.

Customer: replied 2 years ago.

She does try her best at work. she was made up to assistant room manager before the illness got worse, which they have now taken that job role away from her. . She also has a home nebuliser which she takes to work and if she needs it will take it at work and carry on with her shift, other times it does not help and they need to call an ambulance. She is now being referred to a specialist lung hospital in Leicester as her local hospital said there is no more that can be done to help her locally,

Expert:  Ben Jones replied 2 years ago.
Thank you for your response. I will review the relevant information and will get back to you as soon as possible. Please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you
Expert:  Ben Jones replied 2 years ago.
Thanks for your patience. Her rights will very much depend on whether her condition is regarded as a disability in law. 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, 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.
What amounts to ‘reasonable adjustments’ can have a wide interpretation and often depends on the individual circumstances. Below are some examples:
• making adjustments to work premises;
• allocating some of the employee’s duties to others;
• transferring the employee to fill an existing suitable vacancy;
• altering the employee’s hours of work;
• allowing the employee to be absent during working hours for rehabilitation, assessment or treatment connected to their disability;
• acquiring or modifying specialist equipment;
• providing supervision or other support.
In terms of a potential dismissal, capability, where an employee is unable to perform their job due to ill health, is a potentially fair reasons for dismissing an employee under the Employment Rights Act 1996. The definition of ‘capability’ includes competence (skill and aptitude), health (any mental/physical quality) and qualifications.
Whether a capability dismissal is fair will depend on the particular circumstances and the procedure that was followed. The employer needs to show they had reasonable grounds to believe that the employee was incapable of performing their job and that nothing further could be done to assist them. In the end they need to show that dismissal was a reasonable decision to take. The courts have held that an important consideration is whether any reasonable employer would have waited longer in the circumstances before dismissing the employee.
When looking at the reasonableness of such a dismissal, the tribunal will usually look at the following elements:
• What was the nature of the illness
• Was the employee consulted over their position and did the employer try to ascertain the true medical position
• What was the likelihood of the employee returning to work or the illness reoccurring in the future
• The effect a prolonged absence would have on the business and the workforce
• The availability of other suitable employment that the employee could do instead
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.
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.
In terms of the probationary period imposed on her that does not really change her legal rights – protection against dismissal is dependent on length of service, so as she has over 2 years she cannot just be dismissed for failing a probationary period imposed on her. The employer still has to show there was a fair reason for dismissal and follow a fair procedure and if it is to do with her disability then the protection against discrimination would also apply.
At any point she could raise a grievance about this and remind the employer of her rights and their obligations. If she was to be dismissed, the first step is to formally appeal the dismissal with the employer using the internal appeals procedure. After that all that can be done is to submit a claim for unfair dismissal in the employment tribunal (subject to having at least 2 years' continuous service), and/or pursue a claim for disability discrimination.
I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
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