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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 75097
Experience:  Qualified Solicitor
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I have been on sick leave from work since the end of may

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I have been on sick leave from work since the end of may with back pain I’m waiting for an MRI scan at present now my employer has said I should leave or face disaplinary action to be dismissed what should I do
JA: Where are you? It matters because laws vary by location.
Customer: cromer Norfolk
JA: What steps have you taken so far?
Customer: all I’ve done so far is hand in my certificates I’ve been having physio & phone calls to doctors for pain relief
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: ive had spinal fusion approximately 7 years ago

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 long have you worked there for? 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 as soon as I can. Thanks

Customer: replied 9 days ago.
18years

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.

You should make them aware of your rights and remind them that if they proceed with a dismissal, you will be challenging this as an unfair dismissal and 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.

Hello, I trust that everything has now been dealt with to your satisfaction and your original question has been resolved. If you have any further queries about it, please do not hesitate to get back to me on here. In the meantime, I wish you all the best.

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