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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46182
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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Back in November 2013 I was sent home by my employer under

Customer Question

Back in November 2013 I was sent home by my employer under health and safety requirement because I had been to see a specialist and was diagnosed with severe carpal tunnel syndrome in both hands. I was put on an urgent emergency list to have the decompression surgery. First hand op was January 2014 and the second was done march 2014. The second hand developed regional pain syndrome and although have weekly physio there is a substancial delay in my return to work. I am a print finisher on 12 hour Shifts. I had meeting with employer about returning to work, I showed my certificate from specialist that stated a phased return but not until I had new nerve conduction tests done, he thought that this would take about six to eight weeks, but he would know more with these results. I received a letter from my employer today Tuesday 10th June to say as I hadn't given them a date or any info regarding my return to work the wee dismissing me immediately on grounds of capability. Can the do this.
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. an you tell me how long you have been with your employer please

JACUSTOMER-91elv0o0- :

I started with this employer July 2nd 2012. Previous to that a company also in the print industry for 15 years.

Ben Jones :

Ok thank you leave it with me I need to look up a few things and then get my advice ready.I will post back on here when done there is no need to wait and you will receive an email when I have responded. I have to attend a meting and will be of line for a few hours I will get my advice ready for you for later this evening regards ben

JACUSTOMER-91elv0o0- :

Thank you.

Ben Jones :

Many thanks for your patience. Generally, employees with less than 2 years’ service are not protected against unfair dismissal, which means they could be dismissed for more or less any reason by their employer. However, there are certain exceptions that could make a dismissal automatically unfair, even if the required service is not in place.


 


The relevant factor in your case would be potential disability discrimination. It means that if you are classified to be disabled in law and the employer dismissed you because of the disability, the dismissal would be automatically unfair and you can bypass the 2 year service requirement and claim against them. In addition you can also claim for disability discrimination.


 


Therefore, the main issue is to determine whether you are classified as being disabled. 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.


 


If someone who is disabled was being treated unfavourably because of their disability, for example dismissed as in your case, or their employer has failed to make reasonable adjustments it would potentially amount to disability discrimination and unfair dismissal if it led to termination. You can appeal directly with the employer and raise these issues with them, hoping they reconsider their position, but if they refuse and the dismissal stands, all you can do then is consider making a claim in the employment tribunal.


 


Hope this clarifies your position?

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46182
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Law Specialists are ready to help you
Customer: replied 2 years ago.

Thank you for your advice that was very helpful. But I also would like to know if my employer is correct in that he has, as per regulations with my dismissal given 1 weeks pay plus any holiday accrued to date. I am paid on a monthly basis, should he have given or offered more.


 


 

Expert:  Ben Jones replied 2 years ago.
Hello, under law you are entitled to a week's notice for every full year you have been working for your employer. So if you have less than 2 years' service you will only be entitled to a week's notice and any accrued holidays. If your contract allowed for a longer notice period then that would take precedence but otherwise it is just a week's notice. It is irrelevant whether you get paid weekly or monthly

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