DISMISSAL FOR SICKNESS

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					Greater Manchester Pay and Employment Rights Advice Service Factsheet


                 Dismissal for Sickness
  This factsheet explains the procedure your employer should follow before s/he can
  dismiss you because you have been off sick. If you have one year’s service and your
  employer fails to follow the procedure, you may be able to make a claim for unfair
  dismissal at an Employment Tribunal. (See our factsheet on Dismissal). Even if you
  do not have one year’s service, it would be good practice for your employer to follow this
  procedure. The ACAS code of practice says that when employees are absent from
  work for medical reasons, employers should consider:

         how soon the employee’s health and attendance will improve;
         the effect of the absence on the organisation;
         how similar situations have been handled in the past;
         whether the illness is because of a disability in which case the Disability
          Discrimination Act may apply (see our factsheet ‘Disability at Work’);
         whether alternative employment can be offered or if reasonable adjustments
          can be made to the job or working arrangements.

  This code of practice is not law, but Tribunals expect employers to follow it before they
  dismiss employees for sickness absence.

  Dismissal for long term illness
  Besides the steps that ACAS recommend, there are further steps your employer must
  take before s/he can dismiss you on the grounds of long-term sickness:
         S/he must consult with you about your illness;
         S/he must contact your own doctor or medical representative;
         S/he must offer you another job if possible.
  Consulting you about your illness
  Your employer must find out about your illness by talking to you in person. An
  Employment Tribunal ruled that an employer must have discussions with the worker
  who is ill at the start of his/her illness and at various periods throughout the time the
  worker is ill.
  Your employer should ask for your opinion about your illness. This may include asking
  when you are likely to return to work and whether you think you will be able to do your
  old job. Although an employer may ask for your opinion, this does not mean s/he can
  dismiss you because you were proved wrong about your illness. For example, if you
  said you would be off work for eight weeks but did not return for ten weeks your
  employer could not sack you because you misjudged the situation.



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Consulting with your doctor
Your employer should consult with your own doctor before s/he makes any decisions
about your future employment. Your employer should not contact your doctor without
your written agreement. If you agree to let your employer contact your doctor, s/he will
probably ask him/her whether you will be all right to return to work in the future. Your
employer must give you the option of seeing any medical reports before they do. It is a
good idea to see your doctor about what s/he will tell your employer. You can also
refuse your employer permission to see the report altogether, or have your own
statement attached to it. However, if you do refuse to let your employer see the medical
report, s/he may be entitled to dismiss you on the basis of information s/he already has,
even if the available medical facts are not enough to give a full description of your
illness.
If your employer asks you to visit a doctor who is being paid by him/her, such as a
company doctor, and relies on the doctor's advice alone to dismiss you, this may be
seen as unfair by a tribunal. Your employer may want you to be examined by a
specialist depending on the nature of your illness. If you refuse to see a specialist then
your employer may be entitled to dismiss you even if s/he does not know all the facts
about your illness.
Suitable alternative employment
After consulting your doctor about your illness, your employer should look at whether
there is an alternative form of work that you can do in the company if you cannot
continue in your present job. A Tribunal ruled that even when an employer has no
suitable alternative employment at the time s/he gives notice of dismissal, s/he should
still consider whether there is any alternative work at the actual time of dismissal.
Disability discrimination
Employers must consider alternative employment or making adjustments to working
arrangements if the employee in question has a condition which is covered by the
Disability Discrimination Act. See our factsheet on Disability at Work for information
about this, and contact us or another agency listed on the back of this factsheet for
advice.


Dismissal for persistent short term absences
In cases of persistent short-term absences your employer does not have to follow the
procedures laid out for long term absences. However, if you are absent for short
periods because of the same illness, your employer may have to treat these
periods of absence as a long term illness and therefore follow the procedure
outlined above.
Where you have had a series of unconnected illnesses and your employer is
considering dismissing you, s/he must follow a disciplinary and dismissal procedure that
satisfies the requirements of the law. See our factsheets on ‘Disciplinary’ and
‘Dismissal’ procedures for information on this. A satisfactory procedure could include:
      A review of your attendance record and the reasons behind the absences;
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      The opportunity for you to explain why you have been off work;
      A warning that you will be dismissed if your attendance does not improve.


Redundancy selection
When considering what methods they should use to select employees for redundancy
employers must show that they are not dismissing an employee solely on the basis of
non-attendance due to illness, although it may be one of the things looked at. However,
your employer cannot say s/he is making you redundant because you were off sick if:
      your employer has not asked you about why you have been off ill, and
      the period used by your employer to look at your attendance record makes it
       appear to be worse than it actually is, for example just looking at the last six
       months where you have been off sick instead of looking at your attendance
       record over a longer period.

If you are off ill at the time of redundancy, your employer may try to claim that the real
reason for your dismissal is based on your absence from work, rather than the fact that
you've been made redundant. S/he may then try to withhold any redundancy money
owed to you. As a general rule in this situation, if your employer announces
redundancies and around the same time attempts to dismiss you on the grounds of
illness, the real reason would probably be classed by a tribunal as redundancy.


Frustration of the employment contract
This means that the contract of employment between you and your employer no longer
applies because both or one of the parties are unable to fulfill the terms and conditions
contained in the contract, even though it is neither your nor your employer's fault. Your
employer may try to claim that the contract you have with him/her is frustrated because
of your absence through illness. If your employer was successful claiming that your
contract had been frustrated it would mean that s/he would not have to pay you things
like notice pay. You would not be able to claim unfair dismissal.
If your employer claims the contract between you both is frustrated because of your
long-term sickness, s/he needs to take certain factors into consideration such as:
      your length of employment;
      how long your employment could be expected to last if you were not ill;
      the nature of your job;
      whether your employer urgently needs someone to replace you;
      whether a new worker will acquire employment protection;
      whether you have continued to be paid, including payments made to your
       pension scheme if you have one;
      whether your employer has already dismissed or failed to dismiss you;
      whether your employer could be reasonably expected to wait any longer for you
       to return.
Generally courts and Tribunals are reluctant to find that a contract has been frustrated
and your employer would need strong evidence before they allow a claim to succeed.

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Your employer would have to show that there is no reasonable prospect of you
recovering from your illness to resume work in the future (an absence of two years may
still not frustrate the contract) or that there is a need to find a permanent substitute
worker because your position in the firm is very important and/or you could not be found
alternative work.


Medical suspension
Medical suspension means you can be suspended from your normal work on your
normal weekly pay for up to 26 weeks, to prevent you falling ill from working with
hazardous substances. Normal pay in this situation is called medical suspension pay,
(MSP). You have the right to MSP after one month's service regardless of the hours you
work. You cannot claim MSP if you are already ill because of exposure to harmful
substances. Health and safety law includes procedures for dealing with this issue and it
generally covers jobs involving risk of exposure to lead, other hazardous substances or
ionising radiation. For information about health and safety at work contact:
     the Health and Safety helpline on 0845 345 0055, or
     Greater Manchester Hazards Centre on 0161 636 7557.

Statutory sick pay
Statutory sick pay (SSP) is a benefit paid to workers who are sick. It is paid for up to 28
weeks’ absence from work because of illness. If you qualify for SSP your employer must
pay it. You can usually get SSP if you have earned enough to pay National Insurance
contributions. We have a free factsheet, which will tell you more about SSP.
This is a summary, not a full statement of the law. You should take advice either
   from us or another advice agency such as a Law Centre or Citizens Advice
                                     Bureau.

        If you need more information about pay and employment rights, contact
          Greater Manchester Pay and Employment Rights Advice Service
                     0161 839 3888 phone and answer machine,
              th
             4 Floor, Swan Buildings, 20 Swan Street, Manchester M4 5JW
       We provide telephone advice only and cannot see people face to face
                 or visit our website: www.gmemploymentrights.org.uk

                                   Trade Unions
          Trade unions help workers to get better pay and work conditions.
                       For further information contact us or:
 North West TUC, Suite 506-510, The Cotton Exchange, Old Hall Street, Liverpool, L3
                                        9UD
                                Tel: 0151 236 5432

 Greater Manchester Pay and Employment Rights Advice Service is an independent research
 and information body funded by all local authorities in Greater Manchester under the AGMA
                                       grants scheme
                                          March 06
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