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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44955
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I would for the Government - and have done since 1996 I

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I would for the Government - and have done since 1996 I will give just a little background history first - 3 years ago when the Government were shaking up the Civi Service, I was unceremoniously told at 4.15 on a Friday night that I would be working elsewhere from Monday - at the time when I asked what, where and why I was given no real answers obviously this was more than unsetting - I made a few phone calls nobody knew anything about move but like a swan welcomed me on board etc.. after a whole weekend of stressing I was informed on Monday that the move was not happening as they had " not gone about telling me in the right way" obviously from that day on my life was shall we say teetering as I now knew of there intension (which made me very unsettled and worthless throughout just waiting for the axe to fall) and I was right nearly a year letter I was called in again this time given a weeks notice - I asked if I could not be moved due to several personal reasons (my own Health as I had now been suffering from IBS & my Father's Health(Cancer) and I did not thinking starting in a new position was ideal right now. NO I had to go, even if I did not want too - as I was told " Be grateful you at least I had a job offer". I was put in VOA in a job that I would have to have training for in a position I knew absolutely nothing about - there was obvious animosity towards me as I was now down reaching but still being paid EO wages, and people on lesser wages were have to train and mentor me, which did not go down well - (I do understand there upset, but that is not my fault) I was made to feel very uncomfortable especially by my Line Manager who was constantly on my back which I have mentioned to upper managers- who have just basically said talk to her work it out !. (Easier said then done) However I had two years of being made to feel quite inferior and this has had a huge impact on my self confidence and health. to top it all their was a shake up across the Voa re our banding and on paper I have lost two bands in just two years effectively be demoted - as an Rent officer i was an EO for 16years, then when they moved my to the VOA they did not have an EO band so they put us in Band 5 which was lower then the EO now this year they have taken to the same type of banding structure and put band 5 in as an AO therefore I have lost my banding I have appealed and was allowed to keep the Band 5 but not the original EO grade
October 2013 I fell down some steps at work, because a huge chunk of step was missing and I suffered severe conscious, injured knee, back & neck most of these injuries have righted themselves but the fall and subsequent bang to the head has effected my speech, memory & I suffer from severe Headaches. the whole incident shook my whole body and I suffered from acute anxiety leading to constant colds, & sickness 1st incident I was signed of sick until January in total 3 months - and since then I have not been right - I have recently started having Panic attacks, shaking,vomitting & again terrible IBS I went to the doctor he said he thought I had post traumatic stress, and that the fall in October "knocked the lid off" and all has just come tumbling out over the last 12 months and now it has come to a head. And he has signed me off sick Obviously work are not impressed and they have basically said all the right things, as of course they are a Government agency therefore they have to choose their words carefully but the underline message is possible " dismissal" after 18 years this as you can imagine in my current state has really effected me and I now feel constantly sick I have never had a day off work with a Sick note I have spoken to their ASOS Agency re my levels of Sickness and they have agreed with me. But the consistent threat of being dismissed because of ill health caused mostly by this fall is making my overall situation far worse and I am so emotional and scared - can they do this can I be dismissed if a Doctor signs me off sick - if I ignore the Doctor and go back to work surely this will damage my state of mind
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. How long do you think you may be off sick for?

JACUSTOMER-kws6fie9- :

I was signed off after the Fall in October 2013 for 3 months until January I went back to work 6th Jan - now I have been signed off for 6 weeks until the 22nd of October 2014 but Doctor has already said that he will be signing me off until 12th November when current Sick note runs out (Work are unaware of this yet, as were only given sick not until 22nd October yesterday)

JACUSTOMER-kws6fie9- :

my concerns as I am suffering from what I think is work related stress and I have authorised sick leave from my Doctor can my employer dismiss me

Ben Jones :

potentially yes, but it is not as simple as that, I will explain in more detail, let me just get my response ready please

JACUSTOMER-kws6fie9- :

All this has really done by mentioning this action is made me more stressed and ill

JACUSTOMER-kws6fie9- :

I feel as if I am being made to feel scared if i do not return to work I will or can lose my job, but my doctor tells me I am not fit to go back

JACUSTOMER-kws6fie9- :

all this is just causing more issues

JACUSTOMER-kws6fie9- :

will you send me answer via my e-mail *****@******.*** or do I sit on here and wait?

Ben Jones :

the repsonse will be posted on here

JACUSTOMER-kws6fie9- :

I work for the Government - and have done since 1996 I will give just a little background history first - 3 years ago when the Government were shaking up the Civil Service, I was unceremoniously told at 4.15 on a Friday night that I would be working elsewhere from Monday - at the time when I asked what, where and why I was given no real answers obviously this was more than unsetting - I made a few phone calls nobody knew anything about move but like a swan welcomed me on board etc.. after a whole weekend of stressing I was informed on Monday that the move was not happening as they had " not gone about telling me in the right way" obviously from that day on my life was shall we say teetering on the edge, as I now knew of there intention (which made me very unsettled and worthless throughout just waiting for the axe to fall) and I was right nearly a year letter I was called in again this time given a weeks notice - I asked if I could not be moved due to several personal reasons (my own Health as I had now been suffering from IBS & my Father's Health(Cancer) and I did not thinking starting in a new position was ideal right now. NO I had to go, even if I did not want too - as I was told " Be grateful you at least I had a job offer". I was put in VOA in a job that I would have to have training for in a position I knew absolutely nothing about - there was obvious animosity towards me as I was now down reaching but still being paid EO wages, and people on lesser wages were have to train and mentor me, which did not go down well - (I do understand there upset, but that is not my fault) I was made to feel very uncomfortable especially by my Line Manager who was constantly on my back which I have mentioned to upper managers- who have just basically said talk to her work it out !. (Easier said then done) However I had two years of being made to feel quite inferior and this has had a huge impact on my self confidence and health. to top it all there was a shake up across the Voa re our banding and on paper I have lost two bands in just two years effectively be demoted - as an Rent officer i was an EO for 16years, then when they moved my to the VOA they did not have an EO band so they put us in Band 5 which was lower then the EO now this year the VOA have taken to the same type of banding structure as the TRS and put band 5 in as an AO therefore I have lost my banding I have appealed and was allowed to keep the Band 5 but not the original EO grade October 2013 I fell down some steps at work, because a huge chunk of step was missing and I suffered severe conscious, injured knee, back & neck most of these injuries have righted themselves but the fall and subsequent bang to the head has effected my speech, memory & I suffer from severe Headaches. the whole incident shook my whole body and I suffered from acute anxiety leading to constant colds, & sickness 1st incident I was signed of sick until January in total 3 months - and since then I have not been right - I have recently started having Panic attacks, shaking,vomitting & again terrible IBS I went to the doctor he said he thought I had post traumatic stress, and that the fall in October "knocked the lid off" and all has just come tumbling out over the last 12 months and now it has come to a head. And he has signed me off sick Obviously work are not impressed and they have basically said all the right things, as of course they are a Government agency therefore they have to choose their words carefully but the underline message is possible " dismissal" after 18 years this as you can imagine in my current state has really effected me and I now feel constantly sick I have never had a day off work with a Sick note I have spoken to their external medical agency re my levels of Sickness and they have agreed with me. But the consistent threat of being dismissed because of ill health caused mostly by this fall is making my overall situation far worse and I am so emotional and scared - can they do this can I be dismissed if a Doctor signs me off sick - if I ignore the Doctor and go back to work surely this will damage my state of mind

Ben Jones :

Capability, where an employee is unable to perform their job due to ill health, including if they are absent for a prolonged period, is a potentially fair reasons for dismissing an employee under the Employment Rights Act 1996. The definition of ‘capability’ includes competence (skill and aptitude), health (any mental/physical quality) and qualifications.

Whether a capability dismissal is fair will depend on the particular circumstances and the procedure that was followed. The employer needs to show they had reasonable grounds to believe that the employee was incapable of performing their job and that nothing further could be done to assist them. In the end they need to show that dismissal was a reasonable decision to take. The courts have held that an important consideration is whether any reasonable employer would have waited longer in the circumstances before dismissing the employee.

When looking at the reasonableness of such a dismissal, the tribunal will usually look at the following elements:



  • What was the nature of the illness

  • Was the employee consulted over their position and did the employer try to ascertain the true medical position

  • What was the likelihood of the employee returning to work or the illness reoccurring in the future

  • The effect a prolonged absence would have on the business and the workforce

  • The availability of other suitable employment that the employee could do instead

  • 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.


Whether the absence3/illness is due to work-related stress is somewhat irrelevant, although the employer would still have a duty to try and reduce such stress and the factors that increase it. It does not mean an employee cannot be dismissed because their absence is work-related or because they have been formally signed off work. However, 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.

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’.

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.

So in summary, if the employer has not taken time to investigate the true medical position, whether suitable employment was available and generally considered the effects the employee's continued absence would have on the business, any dismissal could potentially be unfair. In addition, if they have failed to make reasonable adjustments in the event the employee's condition amounted to a disability, this could also amount to disability discrimination.

The first step is to formally appeal the dismissal with the employer using the internal appeals procedure. After that all that can be done is to submit a claim for unfair dismissal in the employment tribunal (subject to having at least 2 years' continuous service), and/or pursue a claim for disability discrimination.

Hope this clarifies your position? If you could please let me know that would be great, thank you

Ben Jones :

Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? I just need to know whether to close the question or not? Thanks

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