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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50182
Experience:  Qualified Employment Solicitor
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Ive recently had what my employer defines as a high level

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I've recently had what my employer defines as a high level of sickness. It looks like like they are gearing up to terminate my employement. They refer to a clause in my contract stating "The college reserves the right on the grounds of incapacity by reasons of sickness, injury, or other case, to terminate your employement by notice as detailed in the paragraph..." Is this legal, can they really do this?

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How long have you worked there please?

Customer: I started in 26 February 2013.
Ben Jones :

Apologies for the slight delay, I experienced some temporary connection issues earlier on. All seems to be resolved now so I can continue with my advice. What is the reason for your sickness absence?

Customer: There's been three occasions, firstly it was emergency surgery in September (month off with two hospital admissions) and more recently with sever neck pain (1 week absence) relating to surgery in 2007, and now three weeks from sever depression/strain as the GP has classed it. Effectively, I've had quite a sever reaction to the extensive pain relief resulting in what's best to describe it as a small breakdown. It hasn't helped that my employer has been calling me on my private land line regarding work matters and then with rather threatening letters. All thus has been either via specialist consultant and/or my GP, notwithstanding all covered by GP's fit notes.
Customer: My wife is shocked at the letters and it sounds like they want to get rid of me. So this is why I'm looking for advise.
Ben Jones :

This breakdown you are going through - how long has it lasted and how long is it likely before you are recovered?

Customer: My GP thinks I'm making good progress and should be back fit for work on the 12th March (that takes this period to three weeks).
Ben Jones :

If you have been continuously employed at your place of work for less than 2 years then your employment rights will unfortunately be somewhat limited. Most importantly, you will not be protected against unfair dismissal. This means that your employer can dismiss you for more or less any reason, and without following a fair procedure, as long as their decision is not based on discriminatory grounds (i.e. because of gender, race, religion, age, a disability, sexual orientation, etc.) or because you were trying to assert any of your statutory rights (e.g. requesting maternity/paternity leave, etc.). To be a disability a condition must have lasted or be likely to last for at least 12 months and have a substantially adverse effect on your ability to carry out you normal day to day activities. It does not appear that your conditions would satisfy that requirement.


If the dismissal had nothing to do with any of the above exceptions then you would not be able to challenge it and your only protection would be if you were not paid your contractual notice period, because unless you were dismissed for gross misconduct, you would be entitled to receive your contractual notice period. If you did not have a written contract in place you would be entitled to the minimum statutory notice period of 1 week. Your employer would either have to allow you to work that notice period and pay you as normal, or they will have to pay you in lieu of notice.

Customer: Okay so looking at the correspondence they can dismiss me with a months notice. Are they able to call me on my private telephone number only provided to HR whilst on sick leave. This has occurred a lot and was essentially the last straw.
Ben Jones :

they should still be sensitive to any absence and try not to contact you unnecessarily as it may eventually amount to harassment. It will not prevent any potential dismissal

Customer: Okay
Customer: Looks like I'm stuffed then. Thanks for your help.
Customer: Sorry one last question, when does something become harassment?
Ben Jones :

The law states that a person must not pursue a course of conduct which amounts to harassment of another and which he or she knows or ought to know amounts to harassment. Although there is no definition of what specifically amounts to harassment, it would usually include alarming a person or causing them distress and must have occurred on at least two occasions.

Customer: Okay thanks.
Ben Jones :

You are most welcome, all the best

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