Donna
I am absolutely appalled by your employer's conduct. I have downloaded the following:-
This factsheet explains the procedure your employer should follow before s/he can dismiss you because you have been off sick. If you have one year’s service and your employer fails to follow the procedure, you may be able to make a claim for unfair dismissal at an Employment Tribunal. Even if you do not have one year’s service, it would be good practice for your employer to follow this procedure. ACAS says that when employees are absent from work for medical reasons, employers should consider:
•how soon the employee’s health and attendance will improve;
•the effect of the absence on the organisation;
•how similar situations have been handled in the past;
•whether the illness is because of a disability in which case the Disability Discrimination Act may apply (see below)
•whether alternative employment can be offered or if reasonable adjustments can be made to the job or working arrangements.
This procedure is not law, but Tribunals expect employers to follow it before they dismiss employees for sickness absence.
Dismissal for long term illness
Besides the steps that ACAS recommend, there are further steps your employer must take before s/he can dismiss you on the grounds of long-term sickness:
•S/he must consult with you about your illness;
•S/he must contact your own doctor or medical representative;
•S/he must offer you another job if possible.
Consulting you about your illness
Your employer must find out about your illness by talking to you in person. An Employment Tribunal ruled that an employer must have discussions with the worker who is ill at the start of his/her illness and at various periods throughout the time the worker is ill.
Your employer should ask for your opinion about your illness. This may include asking when you are likely to return to work and whether you think you will be able to do your old job. Although an employer may ask for your opinion, this does not mean s/he can dismiss you because you were proved wrong about your illness. For example, if you said you would be off work for eight weeks but did not return for ten weeks your employer could not sack you because you misjudged the situation.
Consulting with your doctor
Your employer should consult with your own doctor before s/he makes any decisions about your future employment. Your employer should not contact your doctor without your written agreement. If you agree to let your employer contact your doctor, s/he will probably ask him/her whether you will be all right to return to work in the future. Your employer must give you the option of seeing any medical reports before they do. It is a good idea to see your doctor about what s/he will tell your employer. You can also refuse your employer permission to see the report altogether, or have your own statement attached to it. However, if you do refuse to let your employer see the medical report, s/he may be entitled to dismiss you on the basis of information s/he already has, even if the available medical facts are not enough to give a full description of your illness.
If your employer asks you to visit a doctor who is being paid by him/her, such as a company doctor, and relies on the doctor's advice alone to dismiss you, this may be seen as unfair by a tribunal. Your employer may want you to be examined by a specialist depending on the nature of your illness. If you refuse to see a specialist then your employer may be entitled to dismiss you even if s/he does not know all the facts about your illness.
Suitable alternative employment
After consulting your doctor about your illness, your employer should look at whether there is an alternative form of work that you can do in the company if you cannot continue in your present job. A Tribunal ruled that even when an employer has no suitable alternative employment at the time s/he gives notice of dismissal, s/he should still consider whether there is any alternative work at the actual time of dismissal.
Disability discrimination
Employers must consider alternative employment or making adjustments to working arrangements if the employee in question has a condition which is covered by the Disability Discrimination Act.
Dismissal for persistent short term absences
In cases of persistent short-term absences your employer does not have to follow the procedures laid out for long term absences but is expected to follow either their own contractual capability procedure or, if they do not have one, the ACAS code of practice (COP). See our factsheet Disciplinary and Dismissal Procedure.
However, if you are absent for short periods because of the same illness, your employer should treat these periods of absence as a long term illness and follow the procedure outlined above for dealing with long-term illness.
Disability at Work
This factsheet is about your rights, at work or when applying for work, under the Disability Discrimination Act (DDA) 1995 which was amended on 1st October 2005. On 1st October 2010 the government introduced the Equality Act which made it unlawful for employers to discriminate against workers because of “protected characteristics”, disability being one of the characteristics. We are currently producing an updated version of this factsheet, contact us to request updated information when it is available.
Who does the Act cover?
To be covered you must be classed as disabled under the Act, and work in employment which is covered by it. You are classed as disabled if you have a physical or mental impairment which has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities.
◦Physical impairment: includes impairment to the senses e.g. sight and hearing.
◦Mental impairment: includes learning disabilities and mental illness.
◦Substantial: more than minor or trivial.
◦Long-term: has lasted or likely to last at least 12 months or for life.◦
Day-to-day activities: activities carried out by most people on a regular basis and must include one of a list of categories such as speech, hearing or sight, mobility, ability to carry, lift or move ordinary objects.
Donna, you need urgent advice on whether you have been treated fairly and I would question the following:-
1. Was there a formal request in writing to meet you?
2. Were you given the chance to be accompanied?
3. Did he discuss any reasonable adjustments which may enable you to return to work?
4. Has he asked for a report on your health from a GP or Occupational Health?
Donna, I can't stress enough how you need help with this to find out if you are being treated fairly. You have an illness and from what I can see you employer is not taking this into consideration.
Please, please do not be ridden roughshod and get some help either from NRAS, your union or your citizens advice bureau.
Keep us posted.
Take care
Jackie
xx
