Dismissal due to ill health - Is it fair if employer caused it?

cab412

Hi All

I just wondered if anybody has had experience with this. Basically I have been off work with depression, anxiety and panic attacks after being harassed at work and nothing being done.

The HR manager has now said I need to see a BUPA doctor and if they say I am unfit for work then they will dismiss me. They say it will be fair.

Is that so if they caused my long term illness?

fatou256

i agreed but thereis aprocedure to follow u can just simply dismiss soemone as u think they may incapable .. this is why generally there is a need for occupational doctor eetc... before taking a decision.


if the employer dismiss without taking into consideration occu health matter, without any medical record or medical asessment .well then i am sorry this is discrimination to me.

AACAS told me there is a very specific procedure to follow before dismissing someone on long term sickness.

If she has givein a sick note where she put deprssion etc.. then she could have a strong case as m in my example i put a sick note with a gp letter but my boss is still harassing me. if she did that well shje can go to cab to lodge a complant

Bamber19

fatou256 wrote: »

iif the employer dismiss without taking into consideration occu health matter, without any medical record or medical asessment .well then i am sorry this is discrimination to me.

Maybe...just maybe, this is why they're asking her to go and see a doctor...

fatou256

this si what i found on the web :

Employers faced with employees on long term sick leave or who suffer frequent shorter periods of absence as a result of illness are often in a difficult position. As the laws relating to sick leave and discrimination have become ever more comprehensive, understanding your rights as an employer has never been more important. Assess The Position
It is generally accepted that employees on long term sick leave are not good for business. As an employer, you need to be able to rely on your staff being fit enough to carry out their responsibilities. Whilst long term sickness requires sympathy and understanding, it is important to maintain a commercial perspective. The first step is therefore for you to assess your employee’s health problems.
It is important to have a sickness policy in place which allows you to be involved in dealing with your employee’s illness. Implementing return interviews for employees who have been off sick can help both parties to identify and address any ongoing problems. From an employer’s perspective, it is also helpful to assess whether any underlying cause of frequent absences may be as a result of a disability. If there is any possibility that your employee may be disabled, you will need to consider your obligations under the Disability Discrimination Act 1995.
Suffering From Anti-work-itis?
If you come to the conclusion that your employee is malingering, you may need to investigate further to assess the reason why. It may be that your employee is being seriously bullied or intimidated or that there is some psychological complaint or stress affecting your employee’s performance. Investigations need to be sensitively and supportively handled.
If there is any suggestion that your employee is being bullied for any reason, you need to take steps to protect yourself from a potential claim. Your basic duties as employer include:

• A duty to take reasonable steps to ensure the safety and security of your workers
• A duty to prevent discrimination on any of the prohibited grounds
• Vicarious liability for the actions of your employees including actions which may amount to harassment under the Protection From Harassment Act 1997.

A breach of any one of these duties could potentially give rise to a claim against you. If the employee is in danger of developing a psychiatric condition (such as depression) which may affect their ability to work for a prolonged period as a result of a continuing failure to address the situation, you could be facing a very substantial claim for damages. Of course, if your employee is simply lazy and wants to be paid for ‘duvet days’ this is less likely to be an issue and you can move on to the next step in the process.
Dealing With Sickness Absence
The general advice in dealing with sickness absence is to treat it is a capability rather than a conduct issue. An employee’s inability to perform the job he is paid to do is a potentially fair reason for dismissal. If you were considering dismissal, you would need to follow a fair procedure as well and the decision to dismiss should be one which a reasonable employer would take in all the circumstances.
Recent case law confirms that it is still possible to dismiss fairly on the basis of capability even when the employee’s illness has been caused by you – where for example bullying in the workplace has led to psychiatric injury to your employee. In these circumstances though you would have to show that you had done everything possible to assist the employee to return to work.
Getting It Wrong
There are several possible consequences of getting this process wrong; these range from failure to spot a problem leading to a claim for discrimination or under the Protection From Harassment Act (which could be very bad) to dismissing a newly employed member of staff and facing a fairly minor claim for breach of contract (which is unlikely to be catastrophic – depending on the circumstances!)
According to a recent case, the good news is that the employees’ compensatory award in respect of salary during the notice period may be reduced if the employee would have been off sick for the notice period. In these circumstances, the employee may only be entitled to statutory or contractual sick pay as applicable instead of their full salary for the notice period. This does not mean that you should decide to dismiss an employee on long term sick leave on the basis that their award may not be very high.
In Summary…
As an employer, no-one expects you to be a charity and maintain employees who cannot or will not do their job. There is however an obligation on you to ensure that you behave fairly and reasonably and do not discriminate. Preliminary investigation and an accessible support network are therefore important tools as employers should ensure that they are in full possession of all the facts before considering dismissal as an option. Employers should ensure that they take detailed legal advice on their options at the earliest sign that there may be a problem.

fatou256

if i were her i will go if she feel capable however she can wait that her sicknote runs out and then go ...

fatou256

Bamber19 wrote: »

Maybe...just maybe, this is why they're asking her to go and see a doctor...

i have severe depression and i can tell you it is disabling. Againto o depnd on the OP as she does not say how severe is her depression .

cab412

Just an update

I have severe depression and anxiety and now have panic attacks.

I went to a company doctor today who told me that due to arthritis in my knees I can not do any job with a physical element.

My employer had offered me a transfer to 3 jobs that involve a physical element.

They have also got it wrong and said that I am off with stress. This is not the case. I was suspended for 8 months and then went off sick (since Jun 2008)

The company doctor says I could only do a sedentary job.

Now my employer has only offered me the jobs above and no more. There are many other places I could work in the company but have not been offered.

The company employs 5000 staff and is large.

So, I beleive that they have to go the extra mile. Now, when I see the head of HR again she will want to dismiss me because of the doctors report.

Therefore, will this be unfair?

1984ReturnsForReal_2

"They have also got it wrong and said that I am off with stress. This is not the case. I was suspended for 8 months and then went off sick (since Jun 2008)"

--


Thats hardly the impression you gave in your original post.

Why dont you just post on here that you want to sue your employer who has paid you & kept your job open whilst not working the last 18 months?

dmg24

TBH your posts do seem to be written in a way so as to get the response that you want, and I don't think we have the full story. Therefore no one can really give a balanced opinion on your situation.

I am a tad confused at fatou256's posts - are they answering a different question?

bank_of_slate

What was the suspension for?
...Linda xx

Uncertain

To get back to the original question....

A dismissal due to ill health can be fair (if carried out properly) even if the employer caused the problem.

However, if the employer did in fact cause you to be too ill to work, then you would have a claim against them for damages. This would not be easy to prove but could, potentially, lead to a very large award under some circumstances.

Will people please confine themselves to answering questions and not making judgements!!!