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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49828
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I hope that you will be able to help with my query. We

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I hope that you will be able to help with my query.
We currently have an employee working for us who has less than two years service and they have been recently diagnosed with HIV. As a result, the individual has been absent from work for quite some time. In fact, this individual has used up their 27 weeks SSP.
I have been informed today that the individual intends to return to work tomorrow but the manager is seeking a way to dismiss this employee. My concern is that if we dismiss him then we would be at the wrong end of a discrimination claim.
Is there a way to dismiss this employee without being subject to a discrimination claim?
Appreciate your feedback.
Hello, my name is***** am a qualified solicitor and it is my pleasure to assist you with your question today.
Has he raised any grievances?
Hello, my name is***** am a qualified solicitor and it is my pleasure to assist you with your question today.can you tell me has there work been up to standard you require and or are you seeking to dismiss them because of there sickness record.
Customer: replied 2 years ago.
No - there's been no grievance.I have just learned today that he intends to return to work tomorrow. I think the manager fears that he will end up being absent quite a lot so they want to find a way to dismiss him without discriminating him because of his disability.
Thank you for your response. I will review the relevant information and will get back to you as soon as possible. Please do not respond to this message as it will just push your question to the back of the queue and you may experience delays.
Many thanks for your patience. If you are going to relying his illness as a reason to dismiss, even if you do not tell him that is the case, then you would always run the risk that this is going to be discriminatory. Whilst he does not have the required length of service to be protected against unfair dismissal, if the reason is linked to discrimination the dismissal can be automatically unfair regardless of how long he has been there. So you would need to find a robust reason which you can justify and which had nothing to do with his illness. According to the Employment Rights Act 1996 there are five separate reasons that an employer could use to show that a dismissal was fair: conduct, capability, redundancy, illegality or some other substantial reason (SOSR). The employer will not only need to show that the dismissal was for one of those reasons, but also justify that it was appropriate and reasonable to use in the circumstances. In addition, they need to ensure that a fair dismissal procedure was followed and this would depend on which of the above reasons they used to dismiss. So perhaps you could try and find something related to his performance or a misconduct issue which you could rely on and hope that he does not believe that it is linked to his condition. So for this to work you need to find some other genuine reasons and be able to justify them. Otherwise you may find yourself guilty of discrimination which you should really try to avoid. I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
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