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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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HelloI am the owner of a small tour operation

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I am the owner of a small tour operation business. On October 1st A new employee started for me on a part time contract based on 14 hours/week with a clear intention to reduce the hours to 10/week within 6 months. The previous employee had done the work in 7 hours per week but \i was trying to avoid stressing the new employee. There was a 6-month probationary period.
The employee worked roughly 16 hours a week for the first couple of months and I gave him time in lieu - again to give him an easy settling in period as I had realised that although he knew his stuff he was quite slow and anxious. He took this time off in Lieu in the 10 days prior to Christmas. He was due back in at the start of January but phoned in sick saying he was suffering from stress. He then sent a sick note for the next 4 weeks of absence. I offered to meet him to see how he was and he did this. He was grateful I had made the effort to see how he was. He told me that dealing with the death of his father, the probate and not being in agreement with his sister had led to the stress and the final straw had been a phone call from his sister the night before he first called in sick. He also mentioned that it was bringing up the poor relationship with his dad. During the meeting he mentioned that his wife believed he might be on the Aspergers scale. He shared a number of personal issues with me that had contributed to his stress. I wished him well.
Since that date he has sent in a further 2 sick notes which gives him time. off until March 31. Throughout this period, I have been paying him statutory sick pay. I did try to meet again in February but he rejected my offer.
His absence has been incredibly stressful on our small company (myself and 2 ½ full time staff) and I have struggled to get the accounts completed and the VAT completed and to keep up with day to day bookkeeping. The stress has been exacerbated as I have a prospective purchaser of the company waiting on my accounts. They have now been done but about 4 weeks later that we hoped.
The latest sick note came in last Friday. I feel I have suffered damage to my business, substantially increased costs form HR company advice and temporary staffing and the morale of my small team is damaged as they can’t see why I can’t ask him to leave in these circumstances.
I had decided to make him redundant on the original advice from the HR company with whom I spoke. I would then outsource the work to a bookkeeping service who would have their own backup support systems in the event of illness and as a result I would be better protected from this kind of service. However, the HR company have now mentioned their concerns over TUPE. The HR company are also concerned that he may have a history of mental health issues (not declared to me) and this could come into consideration if he is dismissed.
I feel incredibly wronged in this whole situation and would like to bring his employment to an end as swiftly as possible in one way or another.
I would welcome your advice.
Kind regards
John ****
Authentic Adventures Ltd.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. How does HR know he has mental health issues, or is it just a guess?
Customer: replied 2 years ago.
Thank you Ben. They do not. They are just fearful that he might have from what he said to me at our meeting while he was sick and that if so it could impact on my actions
Customer: replied 2 years ago.
Just checking you got my reply
Yes I did thanks, ***** ***** repsond fully shortly
Customer: replied 2 years ago.
Thank you
Can you argue that his position is unique and is no longer required and will not be replaced?
Customer: replied 2 years ago.
If I outsource the work to a freelancer who has others to call on in an emergency (eg if they are ill). Then the job would no longer be required and I would not replace him.
The starting point is that if he has been continuously employed at his place of work for less than 2 years then his employment rights will be somewhat limited. Most importantly, he will not be protected against unfair dismissal. This means that you can dismiss him for more or less any reason, and without following a fair procedure, as long as your decision is not based on discriminatory grounds (i.e. because of gender, race, religion, age, a disability, sexual orientation, etc.) or because he was trying to assert any of his statutory rights (e.g. requesting paternity leave, etc.). In the event that the reason for dismissal fell within these categories, then the dismissal will either be automatically unfair, or there will be a potential discrimination claim. The issue here is potential disability discrimination. If he is having the time off due to a disability, then dismissing him because of this alone can be discriminatory and unlawful. He may be affecting your business as a result but his rights are much stronger than yours and you will have a duty to make reasonable adjustments and should only dismiss as a last resort and after you have shown that adjustments are not possible and there is no prospect of him returning to work in sight. Also if you are outsourcing the work then the likelihood is that TUPE will apply and the contractor taking on the work will also have to take him on s an employee and keep him on. So they may be out off by this idea but if not, then he will transfer over to them and he will no longer be your responsibility. However, they can dismiss him as soon as he transfer over to them because he does not have 2 years service, although again they must not dismiss because of a disability. So whilst you can try and dismiss now, you will have to show that it was not linked to a potential disability. You cannot really argue redundancy because the work will continue and his job will exist so you will have to try and find a way which is not linked to his absences. All of this is on the assumption that he does have a disability but he may not actually have one – he will need to meet certain criteria to show that he does. This is your basic legal position. I have more detailed advice for you in terms of the law on disability and how to determine if someone is disabled, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you
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Customer: replied 2 years ago.
Hi Ben. I have got a bit lost in the system. Have left you a 5 star recommendation. I would like to hear your advice on the law on disability and how to determine if someone is disabled. Finally is not the duty of the employee to inform me if he is disabled at interview or at some other point? Thank you
Thank you. You need to try and establish if the person is disabled or not. In the legal sense of the word, disability can have a broad meaning and there is no single list of medical conditions that qualify. Instead, to establish whether a person is disabled, they need to show that they meet the legal definition of a ‘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. What amounts to ‘reasonable adjustments’ can have a wide interpretation and often depends on the individual circumstances. Below are some examples: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. So you must make reasonable adjustment and only if these do not help and the absence is long-term can you consider dismissal. The employee is not obliged to tell you they are disabled - you cannot refuse to employ them if they were for example
Customer: replied 2 years ago.
So if a person suffers from stress which effects their performance and attendance at work I have no right to know this before I employ them - is that correct.
legally you cannot ask someone about their health history unless it is specific about the job they do, e.g. you can ask if a driver has sight problems, but stress is just a general issue, not specific to a job. Even if you knew the person was disabled you cannot refuse to employ them as a result as that would be discrimination in the same way as dismissing them because of it
Customer: replied 2 years ago.
Ok BenMany thanks for your help. I will stop the discussion now until I have had a chance to discuss it with someone. Your help was much appreciated. I will probably come back with further questions tomorrow. Best wishes John
No problem and you are welcome