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Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
Satisfied Customers: 44900
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I'm asking on behalf of a friend, who has been a registered

Customer Question

For Ben Jones
Hi, I'm asking on behalf of a friend, who has been a registered nurse in the same NHS trust for 17years.
She has been dismissed from work due to high Bradford score.
The majority of her sick leave was covered with Drs certificate.
Most recently her sick leave was due to:
her 18yr old son suffering a dvt resulting in an above knee amputation (this itself is being looked into for medical negligence) she asked for carers leave because she was due to work the day of the operation and as it was an emergency she only found out 10hours beforehand. She was refused careers leave- hence was forced to go off sick.
Her husband has terminal cancer and is in the final days of his life- so she was forced to go off sick again.
At no point was she offered any alternative ways of having time off during highly stressful and emotional times- I must add she works on a busy 12 bedded intensive care unit.
She had a letter stating to attend a meeting with HR- was instantly dismissed from intensive care, but that she can remain on the hospital 'bank'.
I just feel like she has been so unfairly treated, so thought I'd try and find out if she can fight the decision should she choose.
Many thanks in advance for any advice you may have.
Submitted: 8 months ago.
Category: UK Employment Law
Expert:  Ben Jones replied 8 months ago.

How can I help with this please?

Customer: replied 8 months ago.
I wondered whether she had a case to appeal the decision to dismiss her
Expert:  Ben Jones replied 8 months ago.
Hello, sorry my laptop experienced some issues and I have only just managed to fix it.Dismissing an employee due to sickness absence (including high Bradford score) is a potentially fair reason for dismissal under the Employment Rights Act 1996 as it would amount to a capability or even a misconduct issue.However, to justify it as being fair the employer needs to follow a fair procedure and act reasonably. First and foremost the employer needs to comply with any workplace sickness absence procedures and policies. For example these could list the number or duration of absences before formal action is taken.In any event, when considering the fairness of the employer's actions, a tribunal would usually look at the following factors:
• Did the employer investigate the reasons for absence and consult the employee in the process
• 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. Only continuous absences should threaten dismissal and instant dismissal is rarely going to be justified
• Before deciding to dismiss, consider surrounding circumstances, age and length of service of employee together with action taken in respect of similar situations 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.Dismissal must always be viewed as a last resort by the employer. Only when it is obvious that the employee cannot continue in their job and that there was nothing else available for them to do would dismissal become a fair option. The courts have held that an important consideration is whether any reasonable employer would have waited longer in the circumstances before dismissing the employee.She could have also had the right to request time off for dependants which is a legal right if she has to look after a dependant in an emergency situation. She may not been able to use this for her husband to generally look after him, but if something suddenly came up with his health and she was his main or only carer then she could have taken unpaid time off on short notice to deal with this – it is a legal right.So in summary, if the employer has not taken time to investigate the true 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.The first step is to formally appeal the dismissal with the employer using the internal appeals procedure. After that all that can be done is to submit a claim for unfair dismissal in the employment tribunal (subject to having at least 2 years' continuous service).This is your basic legal position. I have more detailed advice for you in terms of the options she has if the appeal is rejected, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you

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