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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49796
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Good afternoon I have an employee that has been off sick after

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Good afternoon I have an employee that has been off sick after an operation but has not given us a sick note since the 26 of February but he is know demanding ssp but in our contract it states that we only pay 1 month sick pay so I was woundering if we had ground to remove him from the position and even tho we have stated in our contract we only pay 1 month sick pay do we need to give him the full 28 weeks
How long has he worked for you?
Customer: replied 1 year ago.
2.5 years
Customer: replied 1 year ago.
He has worked for us for 2.5 years
When you say remove him do you mean dismiss him?
Customer: replied 1 year ago.
Yes because obviously we have had to bring on a temp driver to cover his work and have no idea on his return to work and have found out from over source not himself that he has had another operation we original wanted to keep his job open but with out a sick not or any idea of what's going on this just isn't possible and know having him ring and demand ssp we just trying to understand where we stand so we can do the correct things
What is the reason for sickness?
Customer: replied 1 year ago.
Yes obviously we have had to employee and temp driver to cover his work but he has not contacted us on what is happening and have heard from another source that he has had another operation obviously we have no idea when or what his plans out and can't keep an agency driver because of costs and know demanding ssp we our just trying to work out what we as employer is the right things we must do
Customer: replied 1 year ago.
He has had a disc removed from his spin
Customer: replied 1 year ago.
And yes dismiss him from his role as we have had to employee an agency driver to cover his work
Customer: replied 1 year ago.
And have not had anything regarding his sick note or returning to work
You cannot just dismiss someone because they are off sick and unable to do their job. You can eventually go down that route but rarely as a first step. As he has worked there for more than 2 years he is protected against unfair dismissal so to terminate his employment you must show there was a fair reason for doing so and also follow a fair procedure. There are various steps you should follow before you can consider dismissal.In terms of sick pay if it is a condition that he had to submit fit notes to become eligible for it then you can withhold sick pay if there is no plausible explanation for not providing the notes. Try to work out why this is the case though and five him the opportunity to submit it before making this decision. As to SSP you cannot refuse to pay that for the first 7 days of sickness even if no note is submitted. After that you can ask for evidence.
This is your basic legal position. I have more detailed advice for you in terms of the procedure you must follow to try and justify a dismissal, 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, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones and other Employment Law Specialists are ready to help you
Thank you. Capability, where an employee is unable to perform their job due to ill health, is a potentially fair reasons for dismissing an employee under the Employment Rights Act 1996. The definition of ‘capability’ includes competence (skill and aptitude), health (any mental/physical quality) and qualifications. Whether a capability dismissal is fair will depend on the particular circumstances and the procedure that was followed. The employer needs to show they had reasonable grounds to believe that the employee was incapable of performing their job and that nothing further could be done to assist them. In the end they need to show that dismissal was a reasonable decision to take. The courts have held that an important consideration is whether any reasonable employer would have waited longer in the circumstances before dismissing the employee. When looking at the reasonableness of such a dismissal, the tribunal will usually look at the following elements:· What was the nature of the illness· Was the employee consulted over their position and did the employer try to ascertain the true medical position· What was the likelihood of the employee returning to work or the illness reoccurring in the future· The effect a prolonged absence would have on the business and the workforce· The availability of other suitable employment that the employee could do instead 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. 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.