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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44874
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I was seconded abroad in 2005 but in 2006 most support was

Customer Question

I was seconded abroad in 2005 but in 2006 most support was removed leaving me isolated. Other incidents occured and in 2011 I went off sick with stress. I have been sick on and off since. My work have started sickness procedures which could lead to dismissal. What are my legal options?
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today. Are you still on secondment?

JACUSTOMER-hw9a1k7j- : no back in my normal job in uk
Ben Jones :

Is the current reason for your absence from work still stress?

JACUSTOMER-hw9a1k7j- : yes. I have been on meds since 2011
JACUSTOMER-hw9a1k7j- : you still there?
Ben Jones :

yes I just need to get my response ready

JACUSTOMER-hw9a1k7j- : ah ok sorry
Ben Jones :

just to check - are they taking action because you are on sick leave or because you are unable to perform your job?

Ben Jones :

in other words - is it a disciplinary or performance issue in their eyes?

JACUSTOMER-hw9a1k7j- : because of sickness
JACUSTOMER-hw9a1k7j- : To be honest I think I would prefer to leave anyway but can not afford it
Ben Jones :

Dismissing an employee due to their sickness record is a potentially fair reason for dismissal under the Employment Rights Act 1996. However, to justify it as being fair the employer needs to follow a fair procedure.

First and foremost the employer needs to comply with any workplace sickness or absence procedures and policies.

They need to conduct an investigation, which would involve:

  • Investigating the nature, extent and likely duration of any illness.
  • Asking the employee for information and/or obtain medical reports if necessary.
  • 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.

The employer then needs to review the alternatives:

  • Before deciding whether to dismiss, consider surrounding circumstances, age and length of service of employee together with action taken in respect of similar circumstances 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 should always be the last resort, considering the courts may have sympathy with employees who have been ill, especially if the reason for their absences is a condition that amounts to a disability under law.

In the legal sense of the word, disability can have a broad meaning and there is no single list of conditions that qualify. Instead, to establish whether a person is disabled for legal purposes, they need to establish whether they meet the legal definition of ‘disability’.

The Equality Act 2010 (“EA”) 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, including progressive conditions and mental conditions such as depression;
  • 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 are not defined but would include anything considered ‘normal’ in a person's normal daily routine (e.g. eating, washing, driving, walking, shopping, etc.)

If it appears that the employer has taken a particularly heavy-handed approach and failed to satisfy at least some of the requirements that make such a dismissal fair, the option exists of appealing to them first before submitting a claim for unfair dismissal, subject to having at least 2 years' continuous service (and possible disability discrimination if the condition in question amounts to a disability) in an employment tribunal.

Ben Jones :

I see you are trying to exit chat - has your original query been answered or do you need me to clarify anything before I close this at my end?

Ben Jones :

Hello?

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