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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50722
Experience:  Qualified Employment Solicitor
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I have an employee who has been off sick with depression for

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I have an employee who has been off sick with depression for nearly 28 weeks, I have information that says he has been setting up a business with his wife, I have has a well being meeting which took 4 attempts to get him to meet me and at the end asked about the business which he said was his wife's work, the following morning the website and facebook sites where closed down! I offered him the option to resign or I would report him to hmrc , he has ignored me as the only communication is by email, he wont talk to me am I in my right to dismiss him or do I just finish him, when his ssp runs out ?

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.
Before proceeding please note that as I am a practising solicitor, I am often in and out of meetings, travelling between clients or even at court when I pick your question up. This may even occur at weekends. Therefore, I apologise in advance but there may be a delay in getting back to you and providing my advice. Please be patient and I will respond as soon as I can. You do not have to wait here and you will receive an email when I have responded. For now please let me know how long he has worked there.


since 5th july 2012

Ben Jones :

Thanks for your patience. Is there anything in his contract which prevents him from setting up another business or holding a second job?


no but he is off sick and unable to work for me as he has depression

Ben Jones :

Ok the issues with the other business is not something you can really rely on to dismiss as there is no contractual restriction on him doing so and legally there is nothing preventing him for doing it. Also HMRC will not be interested in this because anyone can have two jobs as long as they pay the relevant taxes.


To dismiss you need to be looking at his capability to do the job. Dismissing an employee due to their sickness record 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.)


So i have asked for a report and i am waiting for it, I am small business that can not afford to have someone off sick this long as part of the job is business building, i have managed to use temp drivers for delivering kit

Ben Jones : I understand that as a small business you may not be able to have employees off for long but the employee will have rights as well and if you are not careful about how you manage this then you can easily find yourself on the receiving end of an unfair dismissal claim and even disability discrimination. This is not something I would recommend and it is best avoided

So what do you recommend i do ?

Ben Jones :

When is he likely to return?


I dont have a date but he is having one to one consultation in July so at least til then !!

Ben Jones :

you would need to consider whether you can make any reasonable adjustments first as that is a strict duty you have under discrimination laws.

What amounts to ‘reasonable adjustments’ can have a wide interpretation and often depends on the individual circumstances. Below are some examples of what could amount to a reasonable adjustment:

  • 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.

Ben Jones :

only if you cannot make any adjustments, the employee is likely to continue being off sick and has no date of return, can you eventually consider dismissal on grounds of capability


Thanks, XXXXX XXXXX do I have to wait ? I have said he can do part time initially if that helps to ease him back in, I await his medical report as he states at our well being meeting that he has not wanted to go out and he has thought about suicide a couple of time, I am not sure it will be safe for him to return as part of the job involves serving chainsaws and tools that if not serviced correctly could be potentially lethal ? My reputation is my good service and supplying first class tool hire for rent !

Ben Jones :

there is no specific period for how long you have to wait and that will often depend on the nature and needs of the business. Whilst I understand that you do not want to allow him to return to his old job unless it is clear he no longer poses a safety risk, you would be required to try and offer him something else he can do before considering dismissal


But there isnt anything else i am a sole trader with 1 hire manager (him) we share delivers to site etc so its not possible to offer anything else as i need a hire manager who can build up the business and serve customers etc

Ben Jones :

ok you only have to consider it and offer it if it is available, obviously if it is not there is not much you can do about it

Ben Jones :

I would be grateful if you could please take a second to leave a positive rating - your question will not close and I can continue providing further advice if necessary. Thank you

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