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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46227
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I need some assistance today i have had a warning in regards

Customer Question

i need some assistance today i have had a warning in regards ***** ***** and been told if i have any more sick time i will be disciplined. I have had a lot of problems with my employment due to me being sick, one year i was in and out of hospital with a illness and had survey twice. My work decided not to pay me. however they pay other people for sick leave and i am the only one they don't. i have always brought i proof e.g hospital letters, GP letters explaining my health issues. i was victimised and ignored when i returned to work. there have been other situations aswell.
please can you help
Submitted: 12 months ago.
Category: Employment Law
Expert:  Remus2004 replied 12 months ago.
How long have you worked there?
Customer: replied 12 months ago.
5 years
Customer: replied 12 months ago.
it will be 5 years in November
Expert:  Ben Jones replied 12 months ago.
Hello, my name is ***** ***** my colleague has asked me to assist with your query as it is more my area of law. What are the specific reasons for being off sick?
Customer: replied 12 months ago.
When i had long term sickness i had problems with my cervix and was signed off by the hospital, that is where is started but today i was pulled in for this years sickness.
i have had a total of 20 days in this year.
4 days i had a upper respiratory tract infection and attended hospital which i provided my discharge notes
at another point i had a virus where i was constantly being sick, flu where i have been in bed etc
Customer: replied 12 months ago.
my issue is not just with the being told off but the fact they never pay me for being sick but they pay the rest if the team
Customer: replied 12 months ago.
thank you
Expert:  Ben Jones replied 12 months ago.
Does your contract entitle you to any sick pay or is it discretionary?
Customer: replied 12 months ago.
it is discretionary to your manager , but everyone else gets sick pay
Expert:  Ben Jones replied 12 months ago.
Disciplining an employee due to sickness absence is a potentially fair reason for doing so 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, offer practical guidance and assistance, setting timescales for improvement, and giving warnings where appropriate.· 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 such as making adjustments in the workplace or to their job It is also important to consider the additional rights someone would have if the condition that is affecting them amounts to a 'disability'. As to the sick pay issue, whilst the employer doe have discretion over whether this is paid or not, if they pay it to everyone else and have always done so there could be an implied contractual obligation for them to pay you to you as well, thus removing that discretion. This is known as ‘custom and practice’ where something becomes contractually binding if applied consistently over time. This is your basic legal position. I have more detailed advice for you in terms of the law on disability and how to determine if you are disabled, plus your options of taking this further, 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: 46227
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 12 months ago.
if for long term sickness hospital letters have been provided and GP letters have been requested can they still discipline me?
i have been told if i am sick again i will be disciplined surely this cannot be.
is there anything i can show them in regards ***** ***** sick pay ?
Customer: replied 12 months ago.
There was also a time when my mum was seriously ill in intensive care, they didn't pay me but they pay another colleague of mine when she is off for her daughter who is ill.
i am usually ignored when i return to work after being sick. i feel i am being victimised. I asked my study support and was told no because of my sick, i asked for flex time just for one month and was told no because of my sickness.
Customer: replied 12 months ago.
i was also told today that they didn't pay me as a incentive to come to work, in which i responded if i wasn't ill then maybe it would but i am ill and all your are doing is causing me stress and i am now in debt
Expert:  Ben Jones replied 12 months ago.
Yes it is possible to be disciplined even if you have genuine sickness absence backed up by doctors’ reports. Persistent and ongoing absences can be dealt with through a disciplinary/capability procedure and eventually can even lead to dismissal. But as mentioned, first of all try to see if you are disabled as that will give you additional rights. 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. If someone who is disabled is being treated unfavourably because of their disability or their employer has failed to make reasonable adjustments it would potentially amount to disability discrimination. The first step would be to raise a formal grievance. The next step would be to consider whether a claim for disability discrimination should be made in an employment tribunal (the time limit for claiming is only 3 months from the date of the alleged discriminatory act taking place). As to the general treatment you are receiving that can 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). The affected employee would initially be expected to raise a formal grievance in order to officially bring their concerns to the employer's attention and give them an opportunity to try and resolve them. If the issues are so bad that the employee can't even face raising a grievance and going through the process, or if a grievance has been raised but has been unsuccessful, then they can consider resigning straight away. If resignation appears to be the only option, it must be done without unreasonable delay so as not to give an impression that the employer's breach had been accepted. Any resignation would normally be with immediate effect and without providing any notice period. It is advisable to resign in writing, stating the reasons for the resignation and that this is being treated as constructive dismissal. Following the resignation, the option of pursuing a claim for constructive dismissal exists. This is only available to employees who have at least 2 years' continuous service. There is a time limit of 3 months from the date of resignation to submit a claim in the employment tribunal. An alternative way out is to approach the employer on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under a settlement agreement, the employee gets compensated for leaving the company and in return promises not to make any claims against the employer in the future. It is essentially a clean break, although the employer does not have to agree to it so it will be subject to negotiation. In any event, there is nothing to lose by raising this possibility with them because you cannot be treated detrimentally for suggesting it and it would not be used against you.
Customer: replied 12 months ago.
i suffer with depression and have done for quite a few years now which my employer is aware off, i do medications for this.
would this be something like you mentioned?
can you advise what can i do with regards ***** ***** pay ?
Expert:  Ben Jones replied 12 months ago.
yes depression can certainly qualify as a disability as long as it meets the remaining criteria which I mentioned. Sick pay issue can only be resolved in one of two ways - the grievance rote first, if they refuse to change their policy for you then you have to consider the constructive dismissal route

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