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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 48202
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I hope you are well. I work in recruitment agency

Resolved Question:

Hi,
I hope you are well.
I work in recruitment agency (contract coordinator on site) , and for the past year I've been complaining to my manager and his manager about neck pains, I do not have a normal office. My desk used to be a kitchen counter and my chair is a bar stool/chair, looking down at the laptop for the past 3 years probably didn't help my health at all.
Due to my neck pain I was off from work from 1st of September. First 7 days, I had the the SSP, and for 8/9/15-16/9/15 I had a docotrs sick note. So my sicknote runs out today, and I'm still in pain, I have contacted my doctor on Monday asking for an appointment, but he gave it to me only for Friday saying that he can backdate the sicknote from the date needed.
I have just informed my manager that I'm not coming into work this week either, I know they all are mad at me, I've never been off sick in those 3 years, and it's kinf of clear that you are really not allowed to be off work.
My question would be- could they sack me, because I'm off sick for 3 weeks?
Again this is the first time I've been off, and I have followed the procedure so far..
Many thanks for your help!
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is***** am a solicitor on this site and 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 worked on contract for service basis for 2 years, and on a full time salary contract just over a year. (Same company)
Expert:  Ben Jones replied 2 years ago.
Is your disciplinary record clean?
Customer: replied 2 years ago.
Yes, it is.
Expert:  Ben Jones replied 2 years ago.
If an employee has been continuously employed with their employer for at least 2 years they will be protected against unfair dismissal. This means that to fairly dismiss them their employer has to show that there was a potentially fair reason for dismissal and that a fair dismissal procedure was followed. According to the Employment Rights Act 1996 there are five separate reasons that an employer could use to show that a dismissal was fair: conduct, capability, redundancy, illegality or some other substantial reason (SOSR). The employer will not only need to show that the dismissal was for one of those reasons, but also justify that it was appropriate and reasonable to use in the circumstances. In addition, they need to ensure that a fair dismissal procedure was followed and this would depend on which of the above reasons they used to dismiss. 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. 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. If this ends up in a dismissal, which I would hope it does not, 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. I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
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