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can u be sacked for sickness if you have produced sick certificates…

can u be sacked for...
can u be sacked for sickness if you have produced sick certificates from your doctors
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1/5/2013
Max Lowry
Max Lowry, Solicitor
Category: UK Employment Law
Satisfied Customers: 1,457
Experience: LLB, 10 years post qualification experience
Verified

Max Lowry :

Hi welcome to Just Answer.

Max Lowry :

How long have you worked there and what was the nature of the illness please?

Customer:

5 years. History of anxiety attacks. Struggle to get rid of various bugs and illnesses due to what I have been through.

Customer:

The last 12 months they are counting.

Customer:

Have had a fractured wrist.inner ear infection, being attacked on way to work and kidney stones as well as a few anxiety attacks.

Max Lowry :

Okay.

Max Lowry :

Do you have a diagnosed illness that could (or has) last(ed) more then 12 months? Because, if you do, it would engage the Disability Discrimination legislation. This would mean that the employer has to look at making reasonable adjustments to accommodate your illness.

Customer:

although I still cannot get them to understand what happens

Max Lowry :

On what ground did they dismiss you?

Customer:

levels of absence

Customer:

yes, anxiety but they claim they have adjusted their policies to accomodate that during the last few years

Customer:

letter does not give a reason but was after a disciplinary meeting this morning regarding my sickness

Max Lowry :

Okay - and are you considering appealing?

Customer:

I am considering it but am not hopeful to be honest. Has to go to store manager but not expecting outcome to be positive

Max Lowry :

Well, it's always worth attempting, and if you dont get reinstated, then you could always look to making a claim for unfair dismissal in any event.

Customer:

can we ask for the handwritten notes to be typed up so we can read them clearly? some of what is written we cannot fully read

Max Lowry :

But, they would have to make reasonable adjustments if the DDA was engaged, and they have to be sure that the reason for the dismissal otherwise is fair. If the DDA isn't engaged, then they need to be fair about your dismissal, and if your absences do call into question your ability to do the job, or there is some other substantial reason (such as effect on operations) then they could dismiss you fairly.

Max Lowry :

You can ask for this - there is no right to this, but most employers would probably do it to try and be seen to be fair, especially if facing a potential claim.

Customer:

absences do not hinder my ability to do the job, especially considering I am the only one that ever does what I do anyway

Max Lowry :

No, but you might hinder their ability to run their business with the absences.

Max Lowry :

Particularly if you're the only one that does what you do.

Customer:

agreed but if I'm sick I cant just go in. When I fractured my wrist I asked if there were any other light duties I could do but they said no. And when I had an attack, my manager said if I felt well to go in during the afternoon and do the hours but still expecting me to be in for 5am the next day as usual. Also say that I could have made it in when I was suffering from the kidney stones which is ridiculous.

Customer:

apparently as everyone can get that problem then they didn't see it as an exception.

Max Lowry :

If the're all unconnected and it's a run of bad luck, then it does sound harsh for them to do as they've done. And, they have to treat their employee consistently - which if you're the only one being targeted, calls that into question. If you've been picked on, then this is more likely to be an unfair dismissal.

Max Lowry :

In summary therefore, you can be dismissed when sick even if you have a doctors not, but that dismissal has to be fair taking into account all of the circumstances. If the illness is one that is recognised by the law as lasting for 12 months (or having the potential to), then they must look at making reasonable adjustments to prevent you being discriminated against by reason of your illness.

Customer:

I appealed the kidney stones one at the time but they're saying they never recieved the letter even though I took it myself

Max Lowry :

Then if you can appeal and show that this point was flawed, it might force them to reconsider their decision.

Customer:

I argued that their policies are flawed and if an illness is genuine and cannot5 be helped then common sense should be applied but to me that wasn't. They really expected me to be able to attend work with the stones. But they would not listen to me.

Max Lowry :

They can be really painful - nobody could do that!

Customer:

as far as they are concerned , anyone could get that so their action was fair.

Max Lowry :

Hmmm.... well, I'm with you on that one!

Max Lowry :

You have the right to appeal - which you're doing, and if you don't get anywhere, then you need to look at an unfair dismissal complaint to the Employment Tribunal. Remember, though, you only have 3 months from the date of dismissal to lodge your tribunal claim - if you want to do that.

Customer:

I did everything that my doctor told me to do and what the company told me to do

Customer:

also , is it fair for them to say "out of 52 weeks in the last rolling year you have been out of the business for 24 weeks" when in fact its been 42 days which is 6 weeks.

Max Lowry :

You need to re-argue your position on appeal, tell them the facts as you see them, and why they got it wrong - including the number of weeks/days. The appeal should be conducted by different people ... see what happens and if it stays the same, look to the Tribunal to make a complaint for unfair dismissal.

Customer:

appeal is supposedly the store manager

Max Lowry :

A different person, right?

Customer:

yes

Max Lowry :

Good. That's fine then.

Max Lowry :

You get to start again - argue your position again.

Customer:

they put me on a weeks holiday but are expecting me to work the 2 weeks notice they have issued me normally as if nothing has happened, and that includes having a family funeral smack bang in the middle of the first week. How do I stand if I dont want to do the 2 weeks?

Customer:

will it affect anything

Max Lowry :

They can do this and expect you to either work your notice, or not get paid for it. If you dont want to do it, you may not get paid for it.

Customer:

I dont want to have to deal with saying goodbye to a loved one and then go back to something I knowIm no longer going to have

Max Lowry :

I know and most employers in fairness would appreciate that and let you go. But, if they don't, then you have a choice to make about going back and not bothering. One might affect your potential appeal, but either way, you'd expect the employer to be fair and reasonable.

Customer:

OK. Thank you for your advice and I will think about what to do.

Customer:

if on appeal can I take a family member to that appeal

Max Lowry :

You've not legal right to take a family member to the appeal, but you do have the right to take a fellow worker or a trade union representative.

Customer:

ok

Max Lowry :

And you're welcome - and I do hope you manage to resolve this satisfactorily.

Customer:

thanks again

Max Lowry :

Please remember to rate the answer for me.

Max Lowry :

Thanks!

Max Lowry
Max Lowry, Solicitor
Category: UK Employment Law
Satisfied Customers: 1,457
Experience: LLB, 10 years post qualification experience
Verified
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