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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48150
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have been off sick weeks and when I took my last

Customer Question

Good morning, I have been off sick for six weeks and when I took my last certificate in to work I was told that I should look for another job. Can this do this? I have been with the company 18 months and the nature of my illness is 'lower back pain'.
Thank you
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. Have they officially terminated your employment?

Customer: replied 1 year ago.
No. It was a comment made by the warehouse manager.
Customer: replied 1 year ago.
If I return to work will this period of absence influence them in any way in the future? Could they use it as an excuse to terminate my contract?
Expert:  Ben Jones replied 1 year ago.

is the lower back pain a serious issue for you or is it just an intermittent thing or a one off issue?

Customer: replied 1 year ago.
It is serious in as much that I am restricted in my work, I assemble kitchen furniture, cabinets, built in larder units, etc., and before I handed my last sick note in I asked if I could try my work to see if my back will last - it did for about half hour. I then handed my sick note to the manager and he asked if I was on the internet. When I replied that I was it was then that he said I had better start looking for another job.
Expert:  Ben Jones replied 1 year ago.

The starting point is that if you have been continuously employed at your place of work for less than 2 years then your employment rights will unfortunately be somewhat limited. Most importantly, you will not be protected against unfair dismissal or constructive dismissal. This means that your employer can dismiss you or force you to leave 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 you were trying to assert any of your statutory rights (e.g. requesting maternity/paternity 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.

So the main issue here is whether you can argue that you have a disability as that would be the best protection you can get in the circumstances. There are specific elements you must satisfy to be deemed disabled and if you do then you will have rather strong protection, in a sense that they cannot treat you detrimentally because of it and they would also have a duty to make reasonable adjustments to help you cope in the workplace.

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, 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.
Thank you for your reply. Unfortunately there are no full time 'light duties' at myp lace of work, I have looked into that already, so I would like further advice regarding the disability aspect, please.
Expert:  Ben Jones replied 1 year ago.

Thank you. 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). If the end result is dismissal then an unfair dismissal clam can be made at the same time.

Customer: replied 1 year ago.
Thank you for that reply. My next question is - 'Who decides that you are disabled?'.
Expert:  Ben Jones replied 1 year ago.

officially - an employment tribunal, but that only happens if the employer refuses to accept your argument that you are and you then make a claim for discrimination

Customer: replied 1 year ago.
Do I need to get any medical evidence of my condition?
Expert:  Ben Jones replied 1 year ago.

Ideally, yes, because at least then you have a professional's opinion on what specific condition you have and its effects