Advise - sacked while on the sick.

Foo_fan · 25 July 2009 at 3:32PM

Hi All,

Long story short - my other half suffers with extreme anxiety. He was sent home from work after having a panic attack and was told to go the the Dr's.

The Dr's gave him a month sick note - new meddication and arranging for him to see a councillor.

My other halfs sick note was due to run out last tues - however on the Monday (before) his employer called him into work and sacked him saying they were making cut backs - and gave him a weeks garden leave.

While my other half was on the sick, his cousin (who helps out sometimes at the company) was covering my other halfs job. He is still working there doing the same job!

Can they do this?

Also while he was on the sick he was getting SSP of £88 per week. The employer has just paid the weeks garden leave and it was only £88 (not a full weeks wage). He called them to query this and they said that "you were still on the sick so we paid you sick pay". So they have addmitted that they sacked him while he was still on the sick.

He has been to Citizens advise by they dont think he's got much of a case.

Any advise?

Thanks

Sarah

bristol_pilot · 25 July 2009 at 3:38PM

Hi, welcome to the site.

There is a bit of an urban myth that you can't be sacked while on the sick. Not true at all. If you have less than 1 years employment you can be sacked for no reason at all (unless it's unlawful discrimination). Even after the one year, if you cannot do your job, for example due to sickness, then you can be sacked. You would only have a case if the illness is officially classed as a disability, which doesn't seem to be the case here.

hayley11 · 25 July 2009 at 3:46PM

If CAB have said he doesn't have a case then he probably doesn't.

As Bristol Pilot says, you can get fired while on the sick, so many people are under the assumption you can't.

Hope he feels better soon and can find another job

Foo_fan · 25 July 2009 at 3:54PM

Thanks for the quick replies both!!

fengirl_2 · 25 July 2009 at 3:55PM

You can be fired whilst off on sick leave, but it has to be done in the proper manner if you have been there more than 12 months. Under that, and you can be fired at ay time.

BlueIsTheColour · 25 July 2009 at 4:38PM

You are entitled to normal wage for the statutory notice period tho whist you are sick, so he should have got that for that final week, under the right to minumum pay during notice (S87-91 of the ERA) Essentially the employer tops up his SSP to his regular wage, plus he should have got any holidays he had accrued and not yet taken.

Am presuming he had less than a years service, so as has been said they can dismiss him in the way they did as they know that there is no legal recourse.

Uncertain · 25 July 2009 at 5:08PM

As others have said, this all depends on whether he has more than a year's service.

OK, it is true that, even then, you can be sacked for medical reasons but there are procedures to go through. Acting as his employer has in this case leaves them wide open to an unfair dismissal claim.

It would normally need far more than one month's sick leave and it would be normal to ask for a doctor's report from his GP and/or another doctor.

The year's service is critcal otherwise you would only have a claim in his illness amounts to a disability (in the legal sense of the word)

Foo_fan · 26 July 2009 at 7:09AM

Thanks All!!

With regards to how long he had been with the company - he started Fed 2007. However in June 2008 the company went into "liquidation", the company was renamed and the boss went out of the picture for a while (only for a bout 6months). So with regards to the "new" company he had been there just over a year.

Does this help?

ceridwen · 26 July 2009 at 8:16AM

I'm still wondering about that week "gardening leave". From what I know of the law - "gardening leave" means one is still working as per normal for an employer and getting paid as per normal - but they just dont want you to actually DO any work for them or be in the workplace.

I may be wrong on this - but I would be checking out carefully to see whether I was entitled to my full pay as per normal for that week.

wordsfan · 31 July 2009 at 11:40PM

2 things. 1 i've found cab not good in this area. 2 certain mental health conditions ARE legally defined for these circumstances as a disability. Mine is ocd and it is, i think because it is part of the autistic spectrum of conditions. fairly sure things like schizophrenia and bpd are too. i'd recommend contacting an agency that deals specifically with mental health issues. large ones like mind deal with all aspects of these types of illness, think theres advice on the govt's own website too.

joewa · 31 July 2009 at 11:48PM

Hi, IMO anxiety is covered by the DDA

Advise - sacked while on the sick.

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