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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49787
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have an employee on sick for six months , she is the only

Customer Question

I have an employee on sick for six months , she is the only one employed to do her job as a beauty therapist she went on sick two weeks prior to her first year in employment , the beauty side of the salon currently does not generate any form of income , I would like to close it and rent it out instead , what is the best way forward , my staff member is suffering with deppresion ?
Submitted: 4 years ago.
Category: Employment Law
Expert:  Ben Jones replied 4 years ago.
Hello, my name is Ben and it is my pleasure to be able to assist with your question today. Please let me know what exactly do you wish to do with her?
Customer: replied 4 years ago.
Terminate her employment .
Expert:  Ben Jones replied 4 years ago.
Dismissing an employee due to their sickness record or capability to do their job is a potentially fair reason for dismissal under the Employment Rights Act 1996. However, to justify it as being fair the employer needs to follow a fair procedure.

First and foremost the employer needs to comply with any workplace sickness or absence procedures and policies.

They need to conduct an investigation, which would involve:
• Investigating the nature, extent and likely duration of any illness.
• Asking the employee for information and/or obtain medical reports if necessary.
• 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.

The employer then needs to review the alternatives:
• Before deciding whether to dismiss, consider surrounding circumstances, age and length of service of employee together with action taken in respect of similar circumstances 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 should always be the last resort, considering the courts may have sympathy with employees who have been ill, especially if the reason for their absences is a condition that amounts to a disability under law.

In the legal sense of the word, disability can have a broad meaning and there is no single list of conditions that qualify. Instead, to establish whether a person is disabled for legal purposes, they need to establish whether they meet the legal definition of ‘disability’.

The Equality Act 2010 (“EA”) 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, including progressive conditions and mental conditions such as depression;
• 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 are not defined but would include anything considered ‘normal’ in a person's normal daily routine (e.g. eating, washing, driving, walking, shopping, etc.)

Depression can certainly amount to a disability f it meets the above definition so you need to be careful.

Also if you decide to close the salon down but rent it out and the new owner will continue operating the same business, there is a good chance that a piece of legislation known as TUPE will apply, where her employment will automatically transfer to the new employer and they will have to take her on. You may see that as getting rid of her but you will need to disclose that to the new employer and that may jeopardise any transfer of the business if they know they have this liability on their shoulders.

As such, a potential dismissal, subject to the above pointers, could be the best decision, although thinking carefully about how you do it and also remembering it will not stop her challenging this if she wanted to.

Please take a second to leave a positive rating as that is a very important part of our process. Your question will not close and I can continue providing further advice if necessary. Thank you
Customer: replied 4 years ago.
I have sent her a letter for us to meet up and discuss a way forward for both parties, she said in a email that
She is having difficulty in getting up enough confidence to contact me , she has received ssp for. 28 weeks. I run a hair salon with the beauty as a bolt on , the trouble is I can not employ another person as cover , she is the only person that carries out the beauty services and as six months have gone all our customer base inthe beauty have found alternative local salons , I can not allow the hair salon to cover the loss of the beauty salon for the forceable future
Expert:  Ben Jones replied 4 years ago.
If you cannot make any reasonable adjustments, she is likely to be off indefinitely and the salon is losing more as a result, then you will have a reasonable argument to try and terminae her employment