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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 73810
Experience:  Qualified Solicitor
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Can I be disciplined because of the amount of time I had off

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Can I be disciplined because of the amount of time I had off work because of COPD
JA: Where are you? It matters because laws vary by location.
Customer: England
JA: What steps have you taken so far?
Customer: I have been contacted by my employer to say that if I am off work again because of ill health they will have to discipline me, which could include loosing my job
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: I have a contract which states I am entitled to 6 months full pay and 6 months half pay. This was when the school where I work were the employer, since then we have been taken over by a contract company\

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.

How much time did you actually have off?

and how long have you worked for your employer please?

Customer: replied 4 days ago.
Because of furlough and time spent in hospital with my COPD I have only worked for about 3 weeks this year. I have been with my present employer since they took over about 6 years ago

OK I understand and thank you for providing this information. Please do not worry and leave it with me for now; I will get back to you with my answer as soon as I can which will be at some point today. The system will notify you when this happens. Please do not reply in the meantime as this may unnecessarily delay my response. Many thanks.

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.

Having frequent or prolonged time off, even for medical reasons, can potentially amount to a disciplinary matter and be dealt with by the employer under their disciplinary process. it is very unlikely that they can instantly dismiss the first time they have raised this and they will need to go through a fair procedure and escalate it gradually over time until it potentially ends up in dismissal subject to no significant improvement over time.

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.

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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