Many thanks for your patience. To answer your questions:
1 Can they dismiss my husband while he is sick
It is entirely possible (and legal) to dismiss someone whilst they are off sick. There is no immunity against dismissal just because he is off work and officially signed off.
The employer is still expected to follow a fair procedure though so they should give him a reasonable opportunity to deal with any allegations and answer them. The main issue for him is his length of service. If he has been continuously employed at his place of work for less than 2 years then his employment rights will unfortunately be somewhat limited. Most importantly, he will not be protected against unfair dismissal. This means that his employer can dismiss him for more or less any reason, and without following a fair procedure, as long as their decision is not based on a reason which makes a dismissal automatically unfair. These include:
· Discrimination due to a protected characteristic (i.e. because of gender, race, religion, age, disability, sexual orientation, etc.)
· Taking, or trying to take, leave for family reasons including paternity leave, adoption leave, childbirth and parental leave
In the event that the reason for dismissal fell within any of these categories, then the dismissal could be automatically unfair and there could also be a potential discrimination claim.
However, if the dismissal had nothing to do with any of the above exceptions, he would not be able to challenge it. In that case his only protection would be if he was dismissed in breach of contract. That could happen if he was not paid his contractual notice period (unless he was dismissed for gross misconduct) or the employer had not followed a contractually binding dismissal procedure. If he did not have a written contract in place he would be entitled to the minimum statutory notice period of 1 week. His employer would either have to allow him to work that notice period and pay him as normal, or they will have to pay him in lieu of notice.
Whilst diabetes can be a disability in law and mean he is protected against detrimental treatment, for this to apply the dismissal has to be related to it, whereas the employer appears to be using other allegations to justify that.
2 Can they force him to attend the disciplinary next Monday.
No one can force him to attend the disciplinary. Usually, if someone is off sick and cannot attend a disciplinary as a result, the employer should allow them to postpone the meeting and gold it when the employee is fit to attend. Whilst usually this would only be dealt with under the overall fairness of a procedure (something he cannot challenge as discussed above), he can argue that it is a disability-related issue because the reason he is off sick is due to diabetes and as such he should not be treated detrimentally because of it as it could amount to discrimination.
3 Is using the word pleb gross misconduct
Quite unlikely. It is potentially a denigrating term, but is it as bad as other offensive words, where someone actively swears and uses obscenities – no it is not
4 Does he have rights under the disability act with regards ***** ***** made worse through his current mental health which is effected through his treatment by his employers.
Yes he likely does. If a person is classified as being disabled they 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.
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
If someone who is disabled is being treated unfavourably because of their disability or their employer has failed to make reasonable adjustments it would potentially amount to disability discrimination.
I trust this has answered your query. Please take a second to leave a positive rating by selecting 3, 4 or 5 stars above - this is an important part of our process and recognises the time I have spent assisting you. If you still need me to clarify anything else, please reply on here and I will assist as best as I can. Thank you