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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 48795
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I was diagnosed with a segment barret's above a hiatas hernia

Resolved Question:

Hi I was diagnosed with a segment barret's above a hiatas hernia in 2012 were I was off work for 6 month's I started to recover from my symptom's and returned to work and was due for my next check up in 2014, but on a couple of occasion my illness flared up again causing me to be off work again.
Then in April 2014 I was off work again with my illness due to stress related which caused it to flare up again I was off work for 2 month's.
Then in July 2014 had my next check up and my condition was still the same no improvement so my next check up is 2016, but in October 2014 I was off work again with my illness for 2 day's this time and this was the last time I had taken time off due to my illness which I have problems with all the time not just work day's .
Then in April 2015 I was in a car accident and had to take 5 days off work due to a neck sprain and back pain's .
so my work place have placed a 3 month verbal warning on me because I have triggered the absence percentage which is 5% over 12 months .
It was not my car accident which triggered my verbal warning it was my illness back in April 2014 .
My question is are they allowed to discipline me over my medical illness which is long-term for life and am I under the disability equality act 2010
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.

Hi ben i have worked there for 9yr's

Customer: replied 2 years ago.

Hi ben I been working there for 9yrs

Customer: replied 2 years ago.

Hi ben I have worked there for 9yrs

Expert:  Ben Jones replied 2 years ago.
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'. 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.
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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