can i be fired for being off sick under a doctors certificate?
Province/Country relating to question: UK
my employer has invited me to a disciplinary meeting regarding 17 days off sick, which was covered by a doctors certificate from day 1. I have spinal injuries which will require open back surgery, which im awaiting a date from the hospital. I have returned to work as the drugs ive been given have basically killed the pain in my back. I do this at my risk however further sickness could lead to my contract being terminated, which means to save my job i cant have surgery and must live with it
Thanks for your question. I'll try and help you with this. Firstly, I need to know how long have you worked with this employer for so far please?
6 years last april
i had been suffering with the pain for 6 months before getting signed off by my doctor. attempts to cure with physio, cardio and standard pain killers, which none worked
i eventually paid for my own MRI scan on my back at the request of my therapist. from this the doctors saw i have a dangerous situation and so signed me off work
being at home helped ease the pain as i was not active. however increased painkillers have eased the pain and so i returned to work awaiting a date from the hospital to begin treatment in an operating theatre to cure my problem.
work have said now im back i will receive a verbal warning. any more sickness, i get written warnings and so on.
i therefore cannot have surgery or i will lose my job
okay. It seems to me as though this is a condition which potentially could last in excess of 12 months. As such, it may be classed as a disability for the purposes of the disability discrimination regime.
As such, the employer is under an obligation to make “reasonable adjustments" to cater for your “disability".
That is not to say, of course, that the employer must continue to employ you come what may, and to meet any salary the otherwise be payable where you at work full-time. The obligation is only to consider what adjustments can reasonably be made, and to implement them if appropriate.
However, what the employer cannot do, is simply say that you will be dismissed in the event of a further absences. That is too simplistic an approach, and is one that is almost guaranteed to be considered unfair, if you are subsequently dismissed for any period of absence.
If you are dismissed in such circumstances, then you would have every right to bring a claim in the employment tribunal for unfair dismissal and/or disability discrimination. Indeed, if the employer fails to do certain things in the course of your employment now, In particular, making reasonable adjustments, that of itself may give rise to an entitlement to bring a claim for disability discrimination.
The company has a policy of full sickness pay for the first 6 months sick, 1/2 pay for the 2nd 6 months, then statutory sick pay after that
which makes no sence as to why i have to attend a meeting and receive a verbal warning
this warning will go on record and tarnish my record and reputation. surely they cant do that given all evidence of my condition has been shown and proven
another note, this is my first sickness absence in the 6 years with this company
I think you are right, it does seem unduly harsh that they are taking this approach. It may be that you are being treated less favourably because of the nature of this illness. As such, you may already have grounds for complaint to the employment tribunal.
Certainly, you may wish to raise a grievance in the course of your employment.
you need to do what is right by you, in your medical condition.
Yes, your employer may not be happy about it, but sometimes, your health is more important.
And the law does provide protection to people in these scenarios, particularly by way of unfair dismissal rights so if unfair action is taken by the employer, you would be able to make a claim.
so if i go to this meeting can i insist on a member from HR / legal is present? basically refuse to accept the warning?
i understand the company wishing to investigate my sickness, and i accept that. its the official warnings, marks on my record and the posibility ill lose my job that concerns me
You can protest at the warning, and say that it is both unfair and inappropriate in the circumstances. If the employer wishes to give you a warning, there is little in reality you can do to prevent him from giving you that warning. The issue is was what effect that may ultimately have on your employment.
As for your rights with the meeting, you are allowed to take a fellow worker (an employee) or trade union representative with you to the meeting. You cannot stipulate who must attend from their side, but more often than not, they would want somebody from human resources there in any event.
oki dokes thanks for that. i think that answers all my questions. can i get a copy of this transcript for my reference?
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many thanks, i'll be back if the meeting doesnt go well
no problem at all. I hope it goes well. Good luck!
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