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?
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:
The employer then needs to review the alternatives:
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:
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.
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
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