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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44380
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I suffer with anxiety and have had 3 episodes of illness in

Customer Question

I suffer with anxiety and have had 3 episodes of illness in the last 6 months working as a nurse in an nhs hospital.Now I am off sick again with the same after being back for 3 weeks. I am 7 months off being able to retire and need to keep going till then. At the rate I'm going can I be sacked before retirement
Submitted: 2 months ago.
Category: Employment Law
Expert:  Ben Jones replied 2 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 2 months ago.

Have you had a disciplinary related to the absence?

Customer: replied 2 months ago.
Expert:  Ben Jones replied 2 months ago.

OK, thank you. I will review the relevant information and laws and will get back to you in a short while. There is no need to wait here as you will receive an email when I have responded. Also, please do not responded to this message as it will just push your questions to the back of the queue and you may experience unnecessary delays. Thank you.

Expert:  Ben Jones replied 2 months ago.

Many thanks for your patience. 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' as that would give the employee further protection.

This is your basic legal position. I have more detailed advice for you in terms of the law on disability, how to establish if it covers you and what protection you get, 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: 44380
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 2 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).

Customer: replied 2 months ago.
Thank you so much for your detailed and helpful advice on employment law as regards ***** ***** from work.
Expert:  Ben Jones replied 2 months ago.

You are welcome, all the best

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