Can you be sacked when "on the sick"?

Marisco

Not sure if I'm on the right board, but I'll try and keep it brief. My friend (and ex colleague) has been off work with stress since mid January. She has been informing her boss and taking in her sick notes. The stress has actually been caused by the boss and the way she has been treated, this has been going on now for a couple of years. She has said in the past that he is trying to get rid of her, but because she needs the work, she's been hanging on in there, he of course cannot sack her as there is absolutely no cause to, she's a good worker.

Anyway she has a note until the middle of April, when she is due to go back and see the doc, and has every intention of returning to work, when the doc says she can do. Beginning of this week she had a meeting with the boss, and because of the way she has been treated and spoken to in the past, she asked me to go with her. I've also worked with this guy until I retired, but because we had a manager, we didn't see too much of him, which was fine, but the manager retired a year after I did, and the boss got more "hands on"

He asked her when she would be returning to work and she told him she has an appointment mid April, and it would be dependant on what the doc says. She phoned me this morning, and told me to go onto a jobseekers site, and have a look at a certain ad. I did do, and it seems the job ad is for her job, but under the pretence of "apprenticeship".

The job description and everything else, is identical to what she is doing, apart from the wages, which is £2.73ph! The business doesn't need another worker, as business has been dropping for a while, it's just hanging on. So she thinks she is about to get a letter "dispensing" of her services. the closing date for applications is the date she goes to the docs.

I have had conflicting answers to the question, some think you can sack someone who's on the sick, and others say you cannot!! I know if someone has a pre existing condition you cannot, under the disabled discrimination act I believe. So if someone can advice what the SP is, I'd be very grateful. Feel free to ask more questions and I'll answer as best I can, without giving too much personal info out.

Marktheshark

They can do what they like, if its legal or not is the question, then if it is not, can you afford the eye watering fees for a tribunal.

stevemLS

An employer can dismiss a person who is "on the sick" on capability grounds, that is to say they are not capable of fulfilling their duties under the contract of employment, by reason of sickness.

This applies regardless of whether the illness is covered by the Equality Act 2010 (which replaced the Disability Discrimination Act) although if the Act is engaged the employer should consider whether "reasonable adjustments" would enable the employee to perform the job.

From the facts you give I would say the 2010 Act is not engaged as the condition must be long term, expected to continue and have a significant impact on day to day activities.

Takeaway_Addict

You can legally be sacked even if covered by the equality act 2010 as long as the employer does things in the proper way...this takes time.

Just think, if an employer couldn't sack someone who had a disability they could effectively be employed forever.

Whether this employer has sacked your friend legally is a different thing.

dseventy

You can be sacked while off sick. There are procedures to follow, and some protected characteristics, but the answer to your question is yes.

So a few questions, how long as she worked there for? If its less than 2 years, they can sack her without a reason (but not on the grounds of race, religion etc). You can even be sacked if you have a disability, its harder, but still possible to do, where adaptions cant be made (as an example).

I also think you might be jumping to conclusions with the new ad. What people off sick sometimes forget, is even though they are off sick, the business needs to keep going and working. They may need to draft people in to cover her work. When someone is off, this increases the workload for others, this can only be absorbed to a point.

D70

barrymung

previous employer of mine sacked someone who was off sick with cancer!


they were off for about four weeks before finding out it was terminal and they were then sacked.


the company stated that the employee had previously had cancer a few years back whilst employed elsewhere and had not declared it (despite not being given the opportunity to declare it)


the employee died a few months later so never got the chance to argue.

Marisco

dseventy wrote: »

You can be sacked while off sick. There are procedures to follow, and some protected characteristics, but the answer to your question is yes.

So a few questions, how long as she worked there for? If its less than 2 years, they can sack her without a reason (but not on the grounds of race, religion etc). You can even be sacked if you have a disability, its harder, but still possible to do, where adaptions cant be made (as an example).

I also think you might be jumping to conclusions with the new ad. What people off sick sometimes forget, is even though they are off sick, the business needs to keep going and working. They may need to draft people in to cover her work. When someone is off, this increases the workload for others, this can only be absorbed to a point.

D70

Thank you for your answers.

To answer your questions, she has no disabilities and she doesn't expect to be off sick for a long time. The reason it's taken as long as it has is because she had a reaction to medication that she was given.

She has been there 15 years with no time off sick before.

There is no need to draft people in, as there are two others there that can do the work, and it's not that busy a place.

What I really wanted to know is can he legally do this, for no other reason that she is off sick, and it seems that he can.

It's difficult to explain the situation without giving too much away, but he is the sort who "ducks and dives" he had to pay a former colleagues tax bill, when he threatened to take him to court over unpaid tax, he'd used the wrong coding. He doesn't pay suppliers until they cut off his supply etc etc, so we think he's using this to get rid of her and get an "apprentice" at a far cheaper rate of pay. And it is exactly the type of thing he would do too.

KiKi

Marisco wrote: »

To answer your questions, she has no disabilities and she doesn't expect to be off sick for a long time. The reason it's taken as long as it has is because she had a reaction to medication that she was given.

She has been there 15 years with no time off sick before.

There is no need to draft people in, as there are two others there that can do the work, and it's not that busy a place.

What I really wanted to know is can he legally do this, for no other reason that she is off sick, and it seems that he can.

In that case, yes, he can. If she's not able or likely to return to work soon (and she's already been off for three months) then he can go down the route of dismissing on the grounds of capability. However, he needs to follow a fair and appropriate process, and if her doctor were to say she's able to return immediately then it would be difficult to dismiss her. However, if doc says there's little likelihood of her return to work soon, then it's been three months, and that's a fair time to allow for recover. So he could go down the dismissal route.

Does the company have a long-term sick / capability / dismissal policy and process that she can look at?

If he chooses to replace her with a lower paid apprentice that's his call - how they run the business is irrelevant, even if you know he's choosing dismissal in order to do this.

KiKi

jobbingmusician

He does have to go down the proper dismissal route though. He has to be very careful to follow his own disciplinary process, which I believe has to be compliant with the ACAS one. He can't jump to sudden dismissal unless for gross misconduct, so will have to give warnings before dismissing.

Tribunal fees are over £1000, but well worth it if, as I suspect he will, the employer messes up and does not follow due process. And it sounds as if your friend might well be back at work before a due process has been followed.....

pelirocco

Takeaway_Addict wrote: »

You can legally be sacked even if covered by the equality act 2010 as long as the employer does things in the proper way...this takes time.

Just think, if an employer couldn't sack someone who had a disability they could effectively be employed forever.

Whether this employer has sacked your friend legally is a different thing.

it takes in bucket loads , we had an employee who was involved in a serious RTA ( not during course of work ) the nature of their injuries meant they would never be able to return to heir old job ( in fact probably any job ) It took over a year to end their employment with us

Marisco

KiKi wrote: »

In that case, yes, he can. If she's not able or likely to return to work soon (and she's already been off for three months) then he can go down the route of dismissing on the grounds of capability. However, he needs to follow a fair and appropriate process, and if her doctor were to say she's able to return immediately then it would be difficult to dismiss her. However, if doc says there's little likelihood of her return to work soon, then it's been three months, and that's a fair time to allow for recover. So he could go down the dismissal route.

Does the company have a long-term sick / capability / dismissal policy and process that she can look at?

If he chooses to replace her with a lower paid apprentice that's his call - how they run the business is irrelevant, even if you know he's choosing dismissal in order to do this.

KiKi

He did give her something but it seems to be a standard policy that could apply to any company/business, he's not given her anything specific for his company.

So it seems he can get rid, but has to follow certain procedures. Mind knowing him, he'll try and get out of that somehow.

She has been looking for another job for a while now, without much luck so far, but she is hoping to go back ASAP, unless he gets rid of her in the meantime. So we'll just wait and see what happens. Thanks again folks.