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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 52614
Experience:  Qualified Solicitor
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My husband is a manager in a factory owned and run by

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My husband is a manager in a factory owned and run by husband and wife.He has worked for them for 12 months and was made redundant from his last job after 19 years service.
Since starting at his current job,He has been diagnosed with diabetes,which did originally effect his usual self eg memory etc.
To cut a long story short his employers are being unreasonable with him and have pushed all his buttons.They have not paid his bonuses stating that he has not performed well enough,and recently paid him significantly less of a bonus.He was expecting in the region of 4000 and got 600 pounds. He has a contract that states he will receive guaranteed bonus of 7.500 per year paid quarterly. He has spoken to a staff member about this and called others indirectly."plebs".This staff member was taken into the office and grilled by the employers and said that he felt forced into telling them what my husband had said.My husband didn't even know the meaning of the word and stated this is a term he used as a child with friends. The other employee laughed at the time saying he hadn't heard that word in years.Ste apologised at the time and said it was unprofessional of him but he was angry with his employers were treating him.
My husband has deteriorated significantly since starting work at this company and has recently been diagnosed with depression.We have tried to keep touch with his works managers but been met with silent pauses and constant query of sick note.
We sent a self cert into work and yesterday they claimed they needed a sick note.
This morning my husband received 2 recorded delivery.
1. A letter telling him he needs to attend a disciplinary meeting next Monday and if he doesn't they will add to the current issues,which they claim are grossly offensive use of language and discussing company information re his bonus.
2.A sick note is needed immediately as his ran out yesterday.
The sick note self cert started on 27th April 2018.I am querying if it has actually run out as there was a bank holiday.Are weekends included as my husband does not work weekends.
They are threatening to not pay his sick pay as the sick note is late.
The employers have been informed on numerous occasions he has an appointment 9-30am 10TH May with the GP. I have tried to get his appointment brought forward but been unsuccessful.The surgery state that if the employers are being unreasonable the sick note can be backdated.
As you can imagine my husband is extremely anxious and this is worsening his mental health.I have never seen him like this before.
Im sorry it is not just a quick question but I didn't know what to ask in the first place.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

What reason have they provided for doing this?

Customer: replied 6 months ago.
Thankyou Ben will you respond to this email address.I am Deborah Vychinski the issues are relating to my husband who is too sick to speak at the moment

OK no problem at all, thank you for your response. Leave it with me for now and I will review the relevant information and laws and will get back to you as soon as I can. Please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you

Sorry can you please clarify what you are hoping to achieve in the circumstances so I can advise more accurately?

Customer: replied 6 months ago.
I suppose we need to know.
1 Can they dismiss my husband while he is sick
2 Can they force him to attend the disciplinary next Monday.
3 Is using the word pleb gross misconduct
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.
We think they do not believe him,we think he is and has been bullied by his employers.They have never once asked how he is.
Customer: replied 6 months ago.
Could he apply for constructive dismissal or simular
Customer: replied 6 months ago.
My husband has just found put that his employers have changed a statement after the staff member has signed it.My husband has spoken to their witness and he has denied saying what they have written.He says they have obviously added information after he has signed.This person is willing to say this in court if necessary.
How can he go back now.He has no trust in them

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

Customer: replied 6 months ago.
Thankyou so much for your time.O sis send further information about his employers changing a witness statement after it had been signed.Is this a case for constructive dismissal.My.husband can not trust his employers now so could not go back and work for them

Constructive dismissal requires 2 years service to be pursued. If he is going to rely on the change of witness statement alone then he cannot pursue constructive dismissal as he does not have the required service length to do so.

It is worth mentioning that there is a possible alternative solution, where the employer is approached on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under such an agreement, the employee gets compensated for leaving the company with no fuss and in return promises not to make any claims against the employer in the future. It is essentially a clean break, where both parties move on without the need for going to tribunal. However, it is an entirely voluntary process and the employer does not have to participate in such negotiations or agree to anything. It just means that these discussions cannot be brought up in any subsequent tribunal claim and prejudice either party. So there is nothing to lose by raising this possibility with them as the worst outcome is they say no, whereas if successful it can mean being allowed to leave in accordance with any pre-agreed terms, such as with compensation and an agreed reference.

Hope this clarifies?

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