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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46763
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have been off sick 9 times in a year, they accept they are

Customer Question

I have been off sick 9 times in a year, they accept they are all genuine but say I could be dismissed if I am off again because they can't complete their workload if people are off, regardless of the reason. Yet if I were female and had a baby I could be off for a year, still not there to complete their workload but that's ok?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
How long have you worked there?
Customer: replied 1 year ago.
32 years this year
Expert:  Ben Jones replied 1 year ago.
Hello sorry I was offline by the time you had replied. What are the reasons for your absences?
Customer: replied 1 year ago.
I Ve had several operations and also been suffering from anxiety/depression
Expert:  Ben Jones replied 1 year ago.
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'. This will give you additional protection and you could use that to fight any attempts to dismiss. This is your basic legal position. I have more detailed advice for you in terms of the law on disability and how it may apply to you, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46763
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Expert:  Ben Jones replied 1 year ago.
Thank you. Disability can have a broad meaning and there is no single list of conditions that amount to a disability under law. Instead, to establish whether a person is disabled, they need to show they satisfy the legal definition of ‘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. 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. 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.
Customer: replied 1 year ago.
Thank you for that. Wanted to ask if being on anti depressants for four years as I have makes it a disability. Also there is a part time post at work I have applied for as a way of easing the stress on me and means I will take at least a 50% pay cut, but I'm happy to do it. They are dragging their feet on it though and threatening me with dismissal instead
Expert:  Ben Jones replied 1 year ago.
It is not just if you have been on anti-depressants that decides if this a disability or not. You must be able to show all of the elements apply. if there is a suitable post available and they unreasonably refuse to lace you in it then the dismissal could indeed be unfair and/or they would be guilty of discrimination. So remind them of that now before they proceed with the dismissal
Customer: replied 1 year ago.
I will, thank you
Expert:  Ben Jones replied 1 year ago.
You are welcome, all the best

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