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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 48176
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I have been off sick weeks with anxiety and depression

Resolved Question:

I have been off sick for 14 weeks with anxiety and depression because I work as an Idva dealing with domestic abuse and the court procedures. It all became too stressful for me particularly as I also had problems with my manager.
I do not feel able to return. My Doctor is in agreement. I am currently signe off work until 30/4/15 but he intends to give me a further sick note.
Can they sack me before my 28 week ssp expires. They realise I am no longer able to persue this work. I know I can probably get benefit help after ssp expires.
If they do will I be entitled to any benefits as it's a mental health issue caused by the work environment I was in.
If I resign through ill health will I beable to claim any benefits. My doctor will, I'm sure, be prepared to provide any records needed.
I am a single Mum with 2 young children in a rented property and I just don't know what to do.
Thank you
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long have you worked there for?
Customer: replied 2 years ago.

I started work there in October 2013

Expert:  Ben Jones replied 2 years ago.
Capability, where an employee is unable to perform their job due to ill health, 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
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. Legally they can dismiss you before the SSP runs out but it would still be subject to the above principles so if they fast track a dismissal like that then they could be guilty of discrimination.
In terms of benefits your entitlement will depend entirely on your personal circumstances. There are way too many variables to consider so you are best advised to use the Government’s Benefits Adviser service to see what you may get:
www.entitledto.co.uk/benefits-calculator/startcalc.aspx?e2dwp=y
Resigning due to the issues you are experiencing is unlikely to adversely affect your entitlement to benefits, it is only if you have resigned without any good reason that it may have an effect.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
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