Over 6 months sick-Can I be sacked?

TheSpiddalKid

concerneduk2020 said:

If you don’t tell them what you need, they can’t help, and they won’t take actions based on a hunch, because if they treat you differently to other employees without a medical reason then that can get them in trouble. For example with my team member, they seemed to me to suffer from stress due to workload, but I couldn’t reduce their workload because they didn’t tell me what they needed. If I had reduced their workload without medical advice then that could have been seen as treating them differently from other employees.

Basically yes they can dismiss you, but you should give them the chance to help you first.

On a point of order, a tribunal will often provide more leniency towards the employee in such situations and will generally expect the employer to take such steps as may be reasonable, such as asking pertinent questions of the employee or seeking advice from OH, to ascertain if the employee has a condition which may be a disability.

The way you have phrased this may read as though it is a binary choice of the employee whether to say something, with the employer waiting for them to say something and not taking any action themselves. Generally, the duck test will apply in such situations and any employer would be advised to act accordingly.

Marcon

concerneduk2020 said:

If you don’t tell them what you need, they can’t help, and they won’t take actions based on a hunch, because if they treat you differently to other employees without a medical reason then that can get them in trouble. For example with my team member, they seemed to me to suffer from stress due to workload, but I couldn’t reduce their workload because they didn’t tell me what they needed. If I had reduced their workload without medical advice then that could have been seen as treating them differently from other employees.

There is nothing to stop an employer treating employees differently, providing that the actions are not unlawful discrimination (i.e. an employee is treated in a way which is detrimental on the basis of a 'protected characteristic'). 

Undervalued

concerneduk2020 said:

I’ve been in the manager role in a similar situation. Mental health problems can count as a disability which means your employer has to make reasonable adjustments to help you return to work. However there are two limitations here, firstly the adjustments has to be reasonable for the business you are in. That could be flexible working, it could be changing your team, it could be giving you extra support in certain areas but it does very much depend on your job. For example if you work in a shop it would not be reasonable to ask for home working.

the second limitation is you have to tell them what you need, or let occupational health make recommendations. You employer is neither a doctor nor a mind reader, if you need something to change to enable you to return to work, you need to tell them what the issue is. You don’t need to tell your direct manager but you do need to tell HR. 

If you don’t tell them what you need, they can’t help, and they won’t take actions based on a hunch, because if they treat you differently to other employees without a medical reason then that can get them in trouble. For example with my team member, they seemed to me to suffer from stress due to workload, but I couldn’t reduce their workload because they didn’t tell me what they needed. If I had reduced their workload without medical advice then that could have been seen as treating them differently from other employees.

Basically yes they can dismiss you, but you should give them the chance to help you first.

"...... can count as a disability" - Yes, but in most cases don't. Unless it does amount to a disability there is no obligation to make reasonable adjustments.

"..... because if they treat you differently......" - Only if is because of a protected characteristic (such as race, gender, sexuality etc), not otherwise. 

concerneduk2020

A disability is a protected characteristic. Obviously it will depend on the doctors advice, and the time frame involved, but given the OP has been given SSRIs in the past and has been ill for a further 6 months, it is possible this is a recurring mental health issue that could qualify as a disability. 

However either way in this case if the OP needs something work related to change but won’t tell their employer what that is, then the outcome is probably going to be the same.

Yes the employer has to take steps such as an OH referral, but that has already happened. If the OP believes there are work related factors contributing to their illness, but won’t tell their employer what needs to change then at some point the employer is going to say they’ve done all they can and pursue capability based dismissal. 

Undervalued

concerneduk2020 said:

A disability is a protected characteristic. Obviously it will depend on the doctors advice, and the time frame involved, but given the OP has been given SSRIs in the past and has been ill for a further 6 months, it is possible this is a recurring mental health issue that could qualify as a disability. 

However either way in this case if the OP needs something work related to change but won’t tell their employer what that is, then the outcome is probably going to be the same.

Yes the employer has to take steps such as an OH referral, but that has already happened. If the OP believes there are work related factors contributing to their illness, but won’t tell their employer what needs to change then at some point the employer is going to say they’ve done all they can and pursue capability based dismissal. 

Possible yes but based on the information the OP has provided so far in this thread, it is unlikely to do so at the moment.

As I mentioned in an earlier post, if the OP has a hard and fast contractual entitlement to six months full and six months half sick pay, it is unlikely that the employer will do very much just yet. Given the type of employer this seems to be, a more likely scenario is that they will look to reach a small settlement agreement for soon after the sick pay entitlement runs out.

However, if the OP can't manage on half gross pay (which is more than half net) plus any ESA or similar they may be able to claim then they need to rapidly assess their options.