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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44392
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I have worked years. I have suffered from depression since

Customer Question

Hi I have worked for hmrc for 21 years. I have suffered from depression since around 1999. In 2009 I had this under control. Until I got a new manager in 2013 and suffered bullying. I started suffering with stress and severe migraine again and had breakdown in 2014. I was off work for around 4 months. On my return I had 5 different managers and I struggled on and had a few more sick days. However my last sick was Nov 2015 and I have everything under control and I am the healthiest I have been for years. Unfortunately on 2 April I fell down the stairs and fractured my foot. I therefore had further sick. I am now back at work fit and well. I have now been told by my manager my case has gone to a decision maker and he has recommended my contract be terminated. I appreciate the last four years my sick has been bad but my depression was triggered by work. I risk loosing my home if this happens. Can you advise if there is anything I can do to argue my case?
Submitted: 3 months ago.
Category: Law
Expert:  Jo C. replied 3 months ago.

Are you asking if you can claim from them?

How much time have you had off sick in total?

Customer: replied 3 months ago.
I am hoping they will extend my stage 2 for a further 6 months as I feel my accident was out of my control. Around 148 days over four years.
Customer: replied 3 months ago.
I am 50 and would struggle to get another job.
Expert:  Ben Jones replied 3 months ago.

Hello, my name is ***** ***** my colleague has asked me to assist with your query as it is more my area of law.Has the employer follow their specific capability policy and given you opportunities to resolve this matter, such as issuing you with warnings over time?

Customer: replied 3 months ago.
They have followed their procedures as far as trigger points go. OCH advised I should be allowed tolerance as I was covered under DAL? Some days were given but under change if management removed.
Expert:  Ben Jones replied 3 months ago.

Thank you. 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

· 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.

This is your basic legal position. I have more detailed advice for you in terms of examples of reasonable adjustments that could have been made by the employer and also how to challenge the dismissal now, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44392
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Law Specialists are ready to help you
Expert:  Ben Jones replied 3 months ago.

Thank you. What amounts to ‘reasonable adjustments’ can have a wide interpretation and often depends on the individual circumstances of the employer, their business, the potential impact on other employees, the available resources, etc. Whilst legislation does not currently provide specific examples of what adjustments can be made, the following are examples that have been considered reasonable in case law over time:

  • making adjustments to work premises;
  • allocating some of the employee’s duties to others;
  • transferring the employee to fill an existing suitable vacancy;
  • altering the employee’s hours of work;
  • allowing the employee to be absent during working hours for rehabilitation, assessment or treatment connected to their disability;
  • acquiring or modifying specialist equipment;
  • providing supervision or other support.

If the employer has not made any reasonable adjustments or have not followed a fair procedure in general then you could consider challenging this as an unfair dismissal and/or disability discrimination.

In the first instance you need to appeal directly to the employer. If the appeal is rejected you have 3 months from the end of your employment to make a tribunal claim.

A new feature in the employment tribunal’s claims process is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible for the parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal.

If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return for the agreed financial settlement.

The conciliation procedure and the form to fill in can be found here:

In terms of the time limits within which a claim must be presented, the early conciliation process places a ‘stop’ on that and the time between notifying ACAS and them issuing permission to proceed with the claim would not count for the purposes of these time limits.

Customer: replied 3 months ago.
Ben, the fact most of my sick was caused by the way I was treated by the department should this be considered?
Expert:  Ben Jones replied 3 months ago.

That would be a relevant factor but not the deciding one, so you should certainly raise it as an argument

Customer: replied 3 months ago.
I am back at work now fit and well I no longer need medication. Would that also be something they should consider? It does not seem right that they can make me ill and then sack me now I have fought back and recovered.
Expert:  Ben Jones replied 3 months ago.

No they should not be sacking you now that you have recovered and are well enough to return. Had you been off continuously and perhaps there had been no projected return date ten that may have been a possibility but it is harsh to do it at this stage.

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