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Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
Satisfied Customers: 46538
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi All I have a question regarding sick off- i have been in

Customer Question

Hi All I have a question regarding sick off- i have been in depression following a stress and issue with management for the last 2 months i have been working for the compagny for 2 years- I have been willing to work since the first day of illness from home as i awak at night and go though different panic the fit not is saying may be fit to work if allowed to work from home and adapted hours. HR did refuse to allow me to even if it is pretty easy for them to do so as it is a internet company and we do work from home one day a week. In my contract they are allowed to terminate the contract after 12o days. I am worried that if i am not feeling better i will be fired. Is it legal for them to do so or do they to adjust the work conditions?

Many thanks
Submitted: 3 years ago.
Category: UK Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today.
Before proceeding please note that as I am a practising solicitor, I am often in and out of meetings, travelling between clients or even at court when I pick your question up. This may even occur at weekends. Therefore, I apologise in advance but there may be a delay in getting back to you and providing my advice. Please be patient and I will respond as soon as I can. You do not have to wait here and you will receive an email when I have responded. For now please let me know what is the nature of your illness?

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Ben Jones :

Thank you for your patience. Dismissing an employee due to their sickness record or because they are not capable to perform their job 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.

First and foremost the employer needs to comply with any workplace sickness or absence procedures and policies.

They need to conduct an investigation, which would involve:

  • Investigating the nature, extent and likely duration of any illness.
  • Asking the employee for information and/or obtain medical reports if necessary.
  • If absences are short-term and intermittent, investigating whether there is any underlying cause (medical or otherwise). If necessary, follow a capability or disciplinary procedure instead, offering practical guidance and assistance, setting timescales for improvement, and giving warnings where appropriate.

The employer then needs to review the alternatives:

  • Before deciding whether to dismiss, consider surrounding circumstances, age and length of service of employee together with action taken in respect of similar circumstances in the past.
  • Consider importance of employee and/or the post occupied to the business, the impact their continued absence is having on the business and the difficulty and cost of continuing to deal with their absence.
  • Consider whether the employee could take up alternative employment or whether there are any other options that would avoid the need for dismissal.
  • If the employee has been absent long-term and is unlikely to return in the foreseeable future the employer should consider claiming under the terms of any Private Health Insurance policy or ill health retirement that is available.

Dismissal should always be the last resort, considering the courts 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.

In the legal sense of the word, disability can have a broad meaning and there is no single list of conditions that qualify. Instead, to establish whether a person is disabled for legal purposes, they need to establish whether they meet the legal definition of ‘disability’.

The Equality Act 2010 (“EA”) 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:

  • Physical or mental impairment – this can include nearly any medical condition, including progressive conditions and mental conditions such as depression;
  • Substantial effect – the effect must be more than minor or trivial;
  • Long-term - the effect of the impairment must either have lasted or be likely to last for at least 12 months;
  • Normal day-to-day activities – these are not defined but would include anything considered ‘normal’ in a person's normal daily routine (e.g. eating, washing, driving, walking, shopping, etc.)

If you believe that you are disabled then the employ76er has the duty to make reasonable adjustments to try and assist you as best as they can. In this case a reasonable adjustment could certainly be allowing you to work from home and unless they have a strong and justifiable reason as to why they cannot do so then it is likely that they will be acting unfairly in this situation.

If it appears that the employer has taken a particularly heavy-handed approach and failed to satisfy at least some of the requirements that make such a dismissal fair, the option exists of appealing to them first before submitting a claim for unfair dismissal, subject to having at least 2 years' continuous service (and possible disability discrimination if the condition in question amounts to a disability) in an employment tribunal.

Ben Jones :

I would be grateful if you could please take a second to leave a positive rating - your question will not close and I can continue providing further advice if necessary. Thank you

Expert:  Ben Jones replied 3 years ago.
I see from your rating that you were not entirely satisfied with the service I have provided you with. Please remember that you are rating the personal service you received, not the contents or quality of my answer. As lawyers we often have to quote the law as it is and that may not necessarily be the answer you wanted to hear - unfortunately there is little we can do about this. My main priority is to ensure that you leave our site satisfied. Therefore, please get back to me with any further questions you may have or let me know if I can clarify anything further for you and improve your rating. Thank you