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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49821
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have been a team for several years in the same company, recently

Customer Question

I have been a team for several years in the same company, recently been placed on pip, for the 1st meeting given a verbal warning, i previously was off sick last feb for 4 wks and was fased bk t wrk on reduced hrs til may do to a family truma, i feel very stressed and doctors saying to take sick as stress related wrk, i guess what i want t know is could they sack me if i go of sick and what would happen to the pip
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.

Ben Jones :

How long have you worked there for?

Customer: Since sept 2007
Ben Jones :

OK, thank you, XXXXX XXXXX this with me - I will look into this for you, get my response ready and get back to you on here. No need to wait around and you will get an email when I have responded, thank you

Customer: Hi dont mean to be rude but will i be waiting days for an answer or will it be soon? Just needed to know the length of time thanks
Customer: Team leader*
Ben Jones :

Hi sorry, not not days of course, just another few minutes, thanks

Customer: No problem
Customer: Here is a corrected version of my question
Customer: I have been a team leader for several years in the same company, recently been placed on pip, for the 1st meeting given a verbal warning, i previously was off sick last feb 2013 for 4 wks and was fased back to work on reduced hours til may due to a family truma, i feel very stressed which has now made me ill and the doctor is saying to take sick as stress and illness due to work related. I am currently on the second day sick via self certification as i was sent home from work on day one. i guess what i want to know is could they sack me if i go off sick instructed by the docter for four weeks with a sick note and what would happen to the pip or me?
Customer: Just added abit more info and cleaned up the typos
Ben Jones :

Did you get my response earlier?

Customer: No?
Ben Jones :

Ah...wonder why that is. Could be to do with some technical issues that happen sometimes. Let me see if I can fetch the saved version and repost it

Customer: Ok
Customer: Please have a read of my corrected question
Customer: Its got more detail that could help
Ben Jones :

thanks I have seen it, but it won't change my answer as your rights will remain the same

Customer: Ok
Ben Jones :

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.


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.


So you have protection in these circumstances and dismissal for a few weeks of absence is rarely going to be fair, we are talking about ling-term absences, such as for months on end or even years before dismissal can be considered necessary.


Customer: Ok i will have a read
Customer: So what would happen to the pip?
Ben Jones :

well i should be suspended until you return to work and can be monitored again

Customer: the docter has advised me to take two or three weeks sick due to stress from work, im currently on this pip at stage one
Customer: So regardless of the verbal warning also?
Ben Jones :

what is the PIP measuring, what is it there for?

Customer: My battery is about to go as im using my ipad i will charge it over night.
Customer: I will have to look at the pip and see what it is meaduring
Ben Jones :

just get back to me in the morning, no problem

Customer: Measuring
Customer: Ok
Ben Jones :



afternoon ben,


just want to know will i be getting charged daily or is the payment i have already made for £22 for continuing on from lastnight


ok ignore that question i just have spoken with customer service.


thanks eitherway


ok back to where i left off last night


the warning was verbal warning for performance, what was asked for me to improve on was tasks like job chats to be actioned on co-workers once a month as not been consistently done, or newsletter to go out once a month at a regular time informing co-workers of the business month and year to date information. Just confirm it had nothing to do with sickness, please excuse me if I come across in anyway not making sense as I am very stressed. I have been to doctor this morning and he has advised and signed me off for 2 weeks with stress. Can I get any trouble for this by my employer. So my previous sick was in Feb 2013 for 4 weeks and as it was classed as long term sick the number of days were not calculated in the absence score so I did not trigger the score level to any type of warnings then. I had 2 days of sick in Nov 2013 and that's it until this week. Thank you.

Ben Jones :

Hi, you won't be charged again we can continue from last night although the initial 10mins you are allowed has run out but I can finish off my response to the follow up question and include it in that anyway.

If the performance measures in the PIP are for tasks you do at work then whilst you are off sick they will not apply and will be placed on hold until you get back to work and the employer is in a position to measure these. As far as being off sick is concerned then if you have to go off sick you simply have to - as mentioned it won't result in a dismissal straight away, or at least it shouldn't when it is just for a few weeks or so, but it could become a problem if it becomes a long term issue, where you are off for months on end and appear unable to perform your job any longer

Ben Jones :

Hope this clarifies your position?

Customer: Ok so say whilst im on sick that my employers try to contact me even though i have already sent them my sick note, do i engage in conversation whilst of sick with a sick note that the employer already has? Or as i am on sick due to stress i should keep away from calls as this could trigger me to get even worse than already? Am correct in thinking that i am within my right to not answer or engage in conversations over the phone whilst i am off sick with the sick note already with them?
Ben Jones :

reasonable contact is allowed but that should be kept to a minimum so they should not pressure you and contact you all the time, as it may even amount to harassment

Ben Jones :

Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? Thanks

Expert:  Ben Jones replied 3 years ago.
Hello, could you please let me know if I have answered your original question or if you need me to clarify anything else for you in relation to this – this is needed so I can either keep the question open or close it if no further advice is required? Thank you
Expert:  Ben Jones replied 3 years ago.
Hi, the question is still open can you please let me know if it has been answered so I can close it if it has? Many thanks
Customer: replied 3 years ago.
Hi Ben, I have been unwell sorry for not getting back to you. I wanted to mention that my doctor signed me off for further one month ( till the 30th of June due to stress), my work have the sick note but they have sent me a letter by recorded deliver requesting that I sign the Capability meeting 1 notes that I had not signed on the day of meeting within 5 working days of receipt, failing to do so will result in unsigned notes being used as evidence for Capability meeting 1, should they be getting in touch with me if I have been signed work by a doctor with stress. Any advice would be greatfull. Thankyou.
Expert:  Ben Jones replied 3 years ago.
Hi, it does not mean that because you are signed off sick the employer cannot contact you at all. They can still make minimal contact as necessary but should not bombard you with correspondence, calls or any unnecessary communications. So they can ask you to sign the minutes but that would be it, they are not asking you to attend anything or constantly calling you to see how you are, when you will be back and so on.

If you could please rate the earlier advice I would be grateful as it is an important prat of out process, many thanks
Expert:  Ben Jones replied 3 years ago.
Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? I just need to know whether to close the question or not? Thanks