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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44390
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I work Met Police, have done so, I have had an operation on

Resolved Question:

I work for the Met Police , have done so for 11years , I have had an operation on my finger for a duplatron cincracrure to straighten the finger
This is the second operation in 3 years , it's classed as a disease
Approximate time off as advised is 6-8 weeks recovery
I have had my supervisor call me trying to get me back to work on light Dutys
At the moment I have an open wound , swelling to the finger and receiving dressing changes as well as physio
Currently my finger is knumb and I have been signed off till 1st September 2016
I have been told I will get A warning over being sick over 40 days
It is stressing me out , I have medical certificate from a consultant stating not to work
Can they do this ?
Submitted: 3 months ago.
Category: Employment Law
Expert:  Ben Jones replied 3 months 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 3 months ago.

I presume you have provided them with your doctor's sick note? Please can you also tell me how long you have been serving for so that I can advise you of your options?

Customer: replied 3 months ago.
Hi Ben can you put my mind at rest
Customer: replied 3 months ago.
I have been with the police since July 2005Yes I have all the medical certificates , they don't have the certificates , they said they will look at them when they do a home visit in August
Expert:  Ben Jones replied 3 months ago.

Hi there and thank you, ***** ***** it with me. I am in court today so will prepare my advice during the day and get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Thank you.

Customer: replied 3 months ago.
Ok thank you
Expert:  Ben Jones replied 3 months ago.

Disciplining an employee due to sickness absence is a potentially fair 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 more formal action.

· Consider whether the employee could take up alternative employment or whether there are any other options that would avoid the need for formal action.

It is also important to consider the additional rights someone would have if the condition that is affecting them amounts to a 'disability'. This 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’.

So yes, it is possible for the employer to consider capability or disciplinary proceedings even if you are genuinely off ill and signed off with a formal note. However, that should not be done strictly as per policy and they need to consider each position on its own merits. Also you may get additional protection if you are classified as being disabled.

This is your basic legal position. I have more detailed advice for you in terms of the law on disability and how to determine of 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, UK Lawyer
Category: Employment Law
Satisfied Customers: 44390
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 3 months 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).

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