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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48168
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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We employed a woman on 3 Nov 2015 to work part tome. She was

Customer Question

Hi
We employed a young woman on 3 Nov 2015 to work part tome. She was pretty unreliable from day one and I took her to one side with her supervisor and told her she had to improve. She improved slightly but then in January 16 she failed to turn up for work on time and left the other staff waiting outside as she was unlocking the office that day. I wrote to her advising that I would be having a disciplinary meeting with her however she went off sick and has now been on the sick ever since some 4 months now. She originally was getting sick(fit) notes from her doctor for sinusitis but now for depression. I advertised for new staff and she actually contacted us not realising it was us to ask for information about the job! She is always out and about and is as far as I'm concerned just scamming the system. I have now been notified by her previous employer that she did exactly the same there and left after she had received the 6 months statutory sick pay period. Is there any way I can terminate her?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.

Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.

Expert:  Ben Jones replied 1 year ago.

Does she have a contractual notice period?

Customer: replied 1 year ago.
Hi Ben
Customer: replied 1 year ago.
two weeks
Expert:  Ben Jones replied 1 year ago.

Thank you I will reply fully within an hour or so

Expert:  Ben Jones replied 1 year ago.

Many thanks for your patience. The starting point is that if she has been continuously employed at her place of work for less than 2 years then her employment rights will unfortunately be somewhat limited. Most importantly, she will not be protected against unfair dismissal. This means that her employer can dismiss her 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 she was trying to assert any of her statutory rights (e.g. requesting maternity 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 she would not be able to challenge it and her only protection would be if she was not paid her contractual notice period, because unless she was dismissed for gross misconduct, she would be entitled to receive her contractual notice period.

So the only issue here is whether she could try and classify herself as being disabled. Depression can amount to a disability if it is a long term condition so really it is a matter of whether she meets the criteria and if this was the reason for her dismissal. Also it depends on whether she is prepared to take it as far as a tribunal and she may be put off by the fact that it costs over £1k to issue the claim. So you can dismiss her if needed, but subject to these potential risks.

This is your basic legal position. I have more detailed advice for you in terms of the law on disability and how it is determined whether someone is disabled or not, 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 is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
I'm not sure the tribunal fee will apply as she is on benefits already so will get relief on that. She has been at the office today swearing and shouting at the staff over her sick pay as the pay officer is not in. I may just dismiss for serious misconduct now.
Expert:  Ben Jones replied 1 year ago.

Yes you may still dismiss for reasons unrelated to disability, her protection will only be in relation to discrimination so as long as you can show that the actual reasons for dismissal were completely unrelated to disability, you may proceed.