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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 73890
Experience:  Qualified Employment Solicitor
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I am off work and have been for 8 months due to stress

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I am off work and have been for 8 months due to stress because my husband was diagnosed with dementia. Work are pressuring me to go back to work
JA: Have you discussed this with a manager or HR? Or with a lawyer?
Customer: had a hr report done on me recently and they will be reviewing it in 4 weeks.
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: yes in the union they have been present on every meeting I’ve been in since I have been off sick. I have been with my employer for 21 years and told them I do want to return to work but it’s going to take time to sort out my husband. He’s in hospital now and will be going into a home for short term and reassessment will take place to see if he need permanent care in a home.
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: this has caused me to have to go on high blood pressure tablets .

Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.

What do you specifically want to know about this, please? Please note this is not always an instant service and I may not be able to reply immediately. However, rest assured that I am dealing with your question and will get back to you today. Thanks

Customer: replied 12 days ago.
Can my employer finish me up. I’ve told them I do want to go back to work but at the moment I cannot do that due to the stress I’m under dealing with my husband. I have sent a sick note in that keeps me off work until 9th august. I have been off since 29 th October 2020. I just want to know if they have any kind of legal right to end my employment.

Many thanks for your patience, I am pleased to be able to continue assisting with your query now. First of all, I am sorry to hear about the issues you have experienced in your situation.

Lack of capability, where an employee is unable to perform the job they were employed to do due to ill health, is a potentially fair reason for dismissal under the Employment Rights Act 1996. An employee’s capability is assessed by reference to their skill, aptitude, health or any other physical or mental quality.

Apart from showing that capability was the reason for dismissal, the employer would also be required to follow a fair procedure. Case law on fairness in these circumstances states that the employer should establish the true medical position and consult with the employee before deciding whether to dismiss. Another important consideration is whether any reasonable employer would have waited longer in the circumstances, or taken other steps first, before dismissing the employee.

When looking at the reasonableness of such a dismissal, an Employment Tribunal will usually look at the following factors:

- What was the nature of the illness and did the employer make attempts to gather more information on it, such as asking for medical reports or examinations

- What are the prospects of the employee returning to work and the likelihood of the recurrence of the illness

- The need for the employer to have someone doing the work

- The effect of the absences on the rest of the workforce

- The employee's length of service

- Was the employee consulted over their position

- The availability of other suitable employment that the employee could do instead

In any event, dismissal should only ever be used as a last resort. Only when it is obvious that the employee cannot continue in their job, that their absences are having a detrimental effect on the business and that there were no alternative roles 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 from a legal perspective and there is no single list of medical conditions that qualify. Potentially anything can amount to a disability if it meets the required criteria.

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 and examine it in more detail below:

- Physical or mental impairment – this can include practically any medical condition, be it a physical or mental impairment

- Substantial effect – the effect must be more than minor or trivial

- Long-term - 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. shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities)

Please also take a look at this detailed guide on determining if the condition(s) in question amount to a disability:

https://www.citizensadvice.org.uk/work/discrimination-at-work/checking-if-its-discrimination/check-if-youre-disabled-under-the-equality-act/

If a person satisfies the necessary criteria, they will be classified as being disabled in a legal sense and will have automatic protection against discrimination. This 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 is classified as disabled, this could also amount to disability discrimination.

The first step is to formally appeal a dismissal with the employer using the internal appeals procedure. After that, the only option available is to submit a claim in the Employment Tribunal for unfair dismissal (subject to having at least 2 years' continuous service), and/or pursue a claim for disability discrimination (no minimum service required for that). The next steps to start the process would be to initiate what is known as an ‘early conciliation’ procedure through ACAS, either online by filling in the following form (https://tell.acas.org.uk/find-a-solution-to-your-employment-dispute), or by phone on 0300(###) ###-####

Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.

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