I have worked fulltime for a university for 10 years. At the end of Dec 2009 I went on maternity leave for 12 months but since then I have been on long term sick leave with depression. I have recently been seen by the occupational health doctor who said I should remain off work for "at least 1-2 further years". Is there a law to state how long do my employers have to keep my post open for me or is it at their discretion and can the decision of the OH doctor be over ridden? Some days I do feel like I could do some work other days I don't feel up to it but I worry if I am off for another long period of time I will never get back to work at all.
Hello and thank you for your question, which I will be happy to assist you with.
There is no minimum/maximum period for which a job should remain open and an employer can consider dismissal according to the individual circumstances. Dismissing an employee due to their sickness record is a potentially fair reason for dismissal under the Employment Rights Act 1996. However, to justify it as being fair the employer needs to follow a fair procedure. The following is a summary of what needs to happen:
First and foremost the employer needs to comply with any relevant sickness or absence procedures and employment contract provisions.
Then they need to conduct an investigation, which would involve:
The employer then needs to review the alternatives:
Dismissal must always be the last resort as dismissals for capability are always difficult to justify to tribunals, who, not unreasonably, may have sympathy with employees who have been ill, especially if the reason for their absences is a condition that amounts to a disability under law.
Disability can have a broad meaning and there is no single list of conditions that amount to a disability under law. Instead, to establish whether a person is disabled for legal purposes, they need to establish whether they meet the definition of ‘disability’ as laid down in law.
Disability is one of the protected characteristics under the Equality Act 2010 (“EA”) and is defined 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 down this definition so that you get a better idea of the requirements necessary for a condition to amount to a disability:
If you consider yourself to be disabled certainly mention this to the employer as they will need to treat you more sensitively in the circumstances and dismissal would be even harder for them to justify.
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FAO Ben Jones only. Thank you for your reply. I met with the HR rep this week and have been told now that I can apply for partial ill health retirement or agree to have my contract terminated with 3 months pay and holiday pay. Should I have been told of these likely outcomes sooner? i.e when I was first seen by Occ Health in July 2011 or again when I saw him in May of this year? I was not expecting these outcomes. The HR person had previously said there would be a job for me when I felt fit enough for work and now I feel let down. Thank you
The is nonspecific timeline as to when these options should have been offered to you. Usually these will be delayed to an extent because they will result in dismissal and if they are as a result of your condition they should be seen as a last resort and as such would be put forward fuher down the line.
FAO Ben Jones thank you for your further reply but please could you explain the first sentence further as I'm afraid it does not make sense to me. Thank you very much.
You asked if these options should have been given to you at en earlier stage and the answer is no as there is no specific point in time when they should have been given to you. If anything they should be offering you these right at the end as they as akin to dismissal and dismissal should always be seen as a last resort
FAO Ben Jones Thank you very much your help is much appreciated.
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