Been fired for being sick

KiKi

skint-student-nurse wrote: »

ok, so my notice pay should be an average of my pay from the last 12 weeks? I was told by someone at ACAS last night that if I do not get my holiday pay,etc in my pay next week (paid 4 weekly) then they have breached the contract...

Firstly, holiday pay is a statutory, not contractual, requirement.

Secondly, if they do go ahead with the dismissal - as I have said before - it will be UNFAIR dismissal. I'm not saying you should go to ET, but you do have the right to correct process, not to be fired over the phone. And you should point this out to them. It may force them to look at things differently.

Thirdly, *if* you have a disability, the employer didn't know about it and had no opportunity to right it. That's in their favour, and I don't think it will help you now.

The fact that you're on a ZHC is what really screws you here, as they just don't have to give you any work.

OP, whatever happens, please get any info you hear from ACAS verified. They are not legally trained and often don't know the right questions to ask.

Ultimately, I suspect you're just better off looking for another job. But if you want due process, remind them that your notice period takes you over 12 months.

KiKi

skint-student-nurse

I have now spoken to someone at the equality/disability helpline. I explained the whole situation to them, including about being forced onto a zero hour contract - and they said I have clearly been discriminated against and it is more than likely that I do have a disability. The issue with being forced onto a ZHC is that,because of my health condition, that is why they wanted me to change my contract AFTER I had explained to them what is wrong with me. They made no attempt to reduce my contracted hours other than the ZHC,change working conditions to help me,etc.

KiKi

skint-student-nurse wrote: »

I have now spoken to someone at the equality/disability helpline. I explained the whole situation to them, including about being forced onto a zero hour contract - and they said I have clearly been discriminated against and it is more than likely that I do have a disability. The issue with being forced onto a ZHC is that,because of my health condition, that is why they wanted me to change my contract AFTER I had explained to them what is wrong with me. They made no attempt to reduce my contracted hours other than the ZHC,change working conditions to help me,etc.

I admit that I'm not a specialist in this area. But I'd be very careful about taking this too literally - perhaps Jarndyce can help here.

I don't think it is clear that you have been discriminated against - at all.

You would have to prove the reason you were put onto a ZHC was because of being off sick. In addition, the employer had no idea it was a disability - because even you don't know, yet. So they simply took action based on your poor record. With under a year's service, they can do that. They didn't unilaterally change your contract (or so it seems from your first post) - you agreed to it, albeit you didn't want to.

They didn't need to change working conditions to help you, because they didn't know you potentially have a disability. Employers are not required to help you at work because you're just off sick. If you go off with a doctor's note, they don't have to adjust your working hours. They don't have to help you (unless, of course, you have a contractual term to that effect). They require you to be at work and you weren't.

Proving that the reason they put you on ZHC because you were ill could be very difficult. Regardless, you agreed to it, and they had no idea at all that there was potentially a disability involved.

I'm not saying don't explore it; I'm saying be very careful about taking such advice so literally. If you really want to explore it, have a conversation with an employment law specialist who knows what they're talking about and can get into the detail with you.

KiKi

Emmzi

Whose disability/ equality helpline?

To support Kiki's assessment

- you are not currently afforded protection under the Equality Act nor were you at the time you were sick - you *may* be once diagnosed, but that is yet to happen
- you cannot give your employer a date when you will be able to return to normal or adjusted duties in a reliable manner

Is it "within the range of reasonable behaviours" for an employer to let an unreliable member of staff go? Yes.

I'm not saying don't explore further but I think your chances of compensation or resinstatement are slim, and you could waste a lot of effort here instead of focussing on your recovery and finding a role better suited to someone with your condition.

To note, I am disabled myself, and it sucks, but sometims you need to spend a bit of time reflecting on what jobs you *can* do. Me, I need one where I can have some flexitime as I get exhausted. So I can't do anything with very rigid hours. You may have different needs and it is worth thinking about what they are.

teajug

anamenottaken wrote: »

When we are writing about disability discrimination we aren't writing about days, but at least a year. (An exception is made for those with terminal cancer.) For example, someone with gallstones may be in hospital for a few days but that doesn't make them disabled.

From what the OP has posted, they were definitely sick but may have a disability.

I understand that, but the OP was in hospital and she has been sacked for being ill.

Do employers now need guarantees from employee that they will not to be ill within two years of their service with them.

Perhaps this should be in their T&C or staff handbook or maybe they look into programming a robot as they are not human and will not let them, think of the money they will save. Wonder how they would feel if it was one of their family members or themselves, But no doubt they never get ill or hospitalised. :o

KiKi

One other thing that I wanted to add from a legal perspective is that for discrimination to be unlawful, you have to have been discriminated against for a protected characteristic. As you haven't been diagnosed with a disability yet, that makes it impossible. (Unless, of course, it was because you are female etc...but we can deduce that's not the case from everything you've said.)

That's the key reason I would take the 'advice' with a pinch of salt until you can get proper legal advice.

KiKi

KiKi

teajug wrote: »

I understand that, but the OP was in hospital and she has been sacked for being ill.

So? They can do that. You can be sacked whilst off ill, and whilst in hospital. You can be sacked for having a disability which makes any work impossible, come to that. Due process followed, of course.

Do employers now need guarantees from employee that they will not to be ill within two years of their service with them.

That's just daft - and you know it. An employer doesn't require a guarantee, but if an employee is off sick a lot - genuine or not - the company can dismiss for capability. They need you to be at work, not away from work.

Perhaps this should be in their T&C or staff handbook or maybe they look into programming a robot as they are not human and will not let them, think of the money they will save. Wonder how they would feel if it was one of their family members or themselves, But no doubt they never get ill or hospitalised. :o

That's just silly - but again, you know that. This isn't a one off - the OP has been off sick several times. It may well be genuine, but the company can take action if you are not at work, and if there is no understanding of when you are coming back. Why should they hold a job open indefinitely?

Under a year they can dismiss for any reason they like (protected characteristics excepted). That's the law. Two years from April (most likely).

Over a year they have to follow proper procedure - but they can still dismiss. An employer is highly unlikely to do that for a one off hospitalisation. But consistent illness, with no clear prospect of return or getting better - yes.

You seem to be talking about an employee being ill once. But this isn't once. This is several times, with no understanding of when she'll return to work. On top of that, she's on a ZHC which means even if they don't dismiss, they will just not give her work. It might suck, but that's how it is.

KiKi

getmore4less

The other thing to check carefully is the new contract.

I have seen some that are really repetative casual contracts, so any gap of a week where you don't work breaks continuity of employment.

If it is a continuous contract with variable hours then if there are any weeks where you got no pay they do not count towards the weeks pay, you keep going back till you get a full compliment of weeks with pay.

skint-student-nurse

UPDATE -

I have found my original contract - it is dated from january 2011 however, there is a note in that contract that continuous employment started in march 2011, but as the contract is dated from january 2011, does this take me over the years service? sorry if it seems like a dumb question, i just dont want to get my hopes up and my head is a bit fuzzy from my medication :-/

thank you for all your replies so far!

Emmzi

Is it a contract dated January to start employment in March? (otherwise I don't think it makes sense!)