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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 61655
Experience:  Qualified Solicitor
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I'm am currently on sick leave and my employer has

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Hi, I'm am currently on sick leave and my employer has advertised my job with out telling me. Is this allowed?
Assistant: Have you discussed this with a manager or HR? Or with a lawyer?
Customer: No, I have had no contact with anyone
Assistant: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: Employee and no not in a union
Assistant: Anything else you want the lawyer to know before I connect you?
Customer: No that's basically it

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

How long have you worked there for?

Customer: replied 3 months ago.
Nearly a year
Customer: replied 3 months ago.
Sorry Ben, I cannot afford to make a call

What is the reason for sick leave?

Customer: replied 3 months ago.
Depression

Is that a long-term issue?

Customer: replied 3 months ago.
Was diagnosed a couple of years ago but went away but then last month I had a family issue which tipped me over the edge, think it was brewing for a while as work was very demanding

In general, if you have been continuously employed at you place of work for less than 2 years then your employment rights will unfortunately be somewhat limited. Most importantly, you will not be protected against unfair dismissal. This means that your employer can dismiss you for more or less any reason, and without following a fair procedure, as long as the decision is not based on a reason which makes a dismissal automatically unfair. These include:

{C}· Discrimination due to a protected characteristic (i.e. because of gender, race, religion, age, disability, sexual orientation, etc.)

{C}· Taking, or trying to take, leave for family reasons including pregnancy, maternity/paternity leave, parental leave, adoption leave or leave for dependants

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. In these circumstances the 2-year rule would not apply.

In your case, the most likely protection would be to show your condition is 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:

  • Physical or mental impairment – this can include nearly any medical condition, be it physical or mental
  • 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)

If a person satisfies the above criteria, they will be classified as being disabled 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.

If someone who is disabled is being treated unfavourably because of their disability it would potentially amount to disability discrimination and any dismissal could be automatically unfair, regardless of service length. The first step to deal with this would be to raise a formal grievance using the employer’s own grievance procedure. If a claim in the employment tribunal is considered it must be made within 3 months of the date of the alleged discriminatory act taking place.

Does this answer your query?

Customer: replied 3 months ago.
Thank you Ben much appreciated

All the best

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