Your rights with ill health dismissal

15 August 2013
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UPDATE: Employees no longer need to pay a fee to raise an employment tribunal claim, following a ruling by the Supreme Court in July 2017.  The court said that the fees were not lawful and any individual who paid the fee between July 2013 and July 2017 is able to reclaim it. 

It's bad enough being too sick to work, but fears about losing your job can only add to the stress. So what are your rights with ill health dismissal and is there any thing you can do to make sure your employer doesn't kick you out of the door before you are ready?

There are six grounds under which employers are legally able to sack employees, and the most significant from an ill health dismissal point of view is capability. If you are too unwell or physically unable to perform your job, your employer has the right to dismiss you, perhaps forcing you into early retirement through ill health.

Christopher Smith, a partner at Quality Solicitors Wilson Browne, says: "Your employer is paying money for a job that is not being done. You can be fairly dismissed for ill health."

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Correct procedures

However, there are strict procedures that your employer needs to follow before dismissing you on grounds of ill health. As Smith explains, if it doesn't follow the correct procedures it could leave itself open to a claim of unfair dismissal or discrimination. "Employers really need to substantiate their claim and without good evidence they leave themselves vulnerable."

Throughout your absence, your employer will have been requesting 'fit notes' from your doctor. These are used to authorise your sickness absence after seven consecutive days off work. Unlike 'sick notes' that preceded them, fit notes are geared towards helping you return to work and give your GP the option to provide some suggestions as to how your employer can support your return to work. Once you have been off sick for four weeks or more, you are considered long-term sick.

Before dismissing you an employer must look at different ways to make it easier for you to return to work, which might involve shorter hours or different duties. It must also discuss your health with you asking when or if it is likely to improve.

Getting assessed

As part of this, your employer will want you to be medically assessed to confirm what the problem is and when or if you will be ready to return to work. This might be with your own GP, a doctor appointed by your employer or an occupational health specialist.

Depending on your contract, you might find that attending such assessments is a condition of your employment, but even if it is not, experts agree it is important to co-operate in the process. If you don't, says Rebecca Lynch, a partner in the employment law department at Gordon Dadds, "you are forcing your employer into making a decision without any medical insight".

And however pressured or vulnerable you might feel about the steps your employer is taking, Lynch says it's a great opportunity to take ownership of the process and ensure your voice is being heard. This can be particularly important if you are seeing an occupational health specialist who may not be medically trained.

"Take any supporting evidence with you and get them to speak to your GP if you don't think they understand your problems," she says. "Occupational health may be very sympathetic but remember they are being paid by your employer."

Anne Pritam, a partner in the employment team at law firm Stephenson Harwood, agrees. "Make sure your own physicians feed into the process. Don't stand back and let it happen to you. This is a very difficult and risky process for them. In practice this is a subjective decision for them and leaves them exposed."

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How long can I be off sick?

Unfortunately for employees there are no rules that stipulate when employers can initiate the process of ill health dismissal. "There is no particular timescale, it depends very much on your role and the inconvenience to your employer," says Smith. "Typically the higher up the pay grade you are, the longer you can take off sick. The higher up you are, the harder you are to replace."

The size of the organisation you work for can also be important - larger companies for example will have more resources and find it easier to cover your job in your absence. "For smaller businesses it can be a lot more difficult, they have to find new staff and train them up," he adds.

Nonetheless, employers do need to be mindful that in dismissing you for ill health they are not discriminating against you under the terms of the Equality Act. "They can't discriminate against disability. They need to consider whether they have made reasonable adjustments or done anything that will have a greater impact on a disabled person," says Smith.

Lynch adds: "If you had accrued unfair dismissal rights, dismissal for ill health would be seen as aggressive within a year."

Read 'Retirement planning for ill health' here.

Ill health dismissal compensation

However, should you feel that you are ready to go, you may be able to negotiate some form of ill health dismissal compensation via a severance package or settlement agreement with your employer. This can provide you with a financial cushion until you are well again or can find alternative employment. Lynch says: "In doing this you sign an agreement to waive the right to any further claims against your employer in return for the money."

Your employer might be more open to this than you expect. Not only does it remove the risk of a tribunal but it saves them going through the lengthy and difficult process of terminating your contract.

Unfair dismissal

Should you wish to challenge the decision it would need to be on the grounds of unfair dismissal (so long as you have been employed for two years, or one year if you were employed before 6th April 2012) or, if you are legally disabled you might be able to make a claim of discrimination under the Equality Act. Here you would need to prove that your employer did not make reasonable adjustments to enable you to return to work.

Unfortunately taking your employer to a tribunal isn't cheap. A claim for unfair dismissal carries a £250 issue fee and a whopping £950 hearing fee. Although these charges do need to be paid by the employee, Pritam says you might find that some lawyers will pay the fees upfront, or they might be paid by any legal cover you have as part of your home insurance. Alternatively if your income does not meet certain thresholds they may be waived.

But if you think you have a case don't let these charges put you off. Get some legal advice to see if you have a case. "If you think something about the process hasn't been right speak to a lawyer," advises Pritam. "A lot of lawyers will happily give you 15 or 20 minutes of their time for free on the phone."

For more help and confidential advice call the Acas (Advisory, Concilliation and Arbitration Service) helpline, which can help you with any employment dispute on 0300 123 1100.

In reply to by anonymous_stub (not verified)

This advice is factually incorrect and now out of date. There is no fee to take a case to an employment tribunal.

In reply to by anonymous_stub (not verified)

I have currently been off work for 6mths, I have been diagnosed with wear and tear and arthritis in the base of my spine. I work in a care home and do a lot of moving and handling. I am waiting to see a specialist, the estimate time to see the specialist is 30-35 weeks, I have been on the waiting list 12weeks. I have meetings with my manager and HR. They have given me the options of redeployment or I'll health retirement. I have been with Aberdeenshire Council, 18 years. My husband says I should be entitled ti serverence money for every year I have been there. Would this be in with my pension I am due.?

In reply to by anonymous_stub (not verified)

Hi I have worked for my current employer for 15 years as a manager on a full time contract last year I had to take a lot of time off because of my dad dying and my brother dying, so was offered a part time contract to see me through I have never signed a new contract I also have paperwork that has got a forged signature of mine on it and my company are retiring me with a payout of 12 weeks pay on my part time contract even though I have not signed one is this legal, as I feel it should be paid on my full time contract

In reply to by anonymous_stub (not verified)

Last May I was dismissed from my job of 22 years and was given the title inconsistent worker as I have short term memory and anxiety problems. What benefits should I be getting other than reduced JSA of £30 pw?

In reply to by anonymous_stub (not verified)

My manager is trying to get rid of me through I’ll health retirement I am currently somewhat disabled by having osteoarthritis in my knee which has resulted in a fair bit of time off work. Recently my boss has been singling me out harrassing me about my condition and told me in no uncertain terms that she doesn’t want me working there. I am due to have a knee replacement operation in three months of which she is aware and am in receipt of PIP allowance for the lowest amount for the time being or till my condition changes. I feel she is discriminating directly against me personally can I stop her from sacking me through I’ll health because of characteristics of disability ? Adaptations have been made in my workplace which I think are manageable but she says are not working. I am currently off with stress and anxiety from her constantly degrading comments to me and threats of dismissal

In reply to by anonymous_stub (not verified)

Im off work sick since 8th May with stress due to my work my employer has ask me to leave with I’ll health. Thay have not notified me over 2 letters /emails sent to all staff telling them their has been a problem to phone tax office when I ask thay said it was sent to all staff advising them to get in touch with inland revenue I was not informed and had a letter from inland revenue saying I owe money this has stressed me more don’t know what to do any ideas ??

In reply to by anonymous_stub (not verified)

I’ve had a stage one capabilitymeeting at work based on another staff member claiming my incapacity working with her. It’s not true I e been working there a long time with no complaints until the day of the incapacity meeting, there are adjustments in place for me due to a disability I have osteoarthritis prone to flare ups and osteopenia in my spine with three collapsed vertebrae. It was mentioned at the meeting that I must not perform specific tasks at all, however they have moved me to another department where I may doing the very tasks they told me I couldn’t do unde capability and I’m doing this every day I work all day. My doctor wants to sign me off with stress now but I am afraid that this will play into my employers hands and that they will proceed trying for I’ll health retirement which seemed to be the topic of the meeting I’m 61 years old and worked there since 2001. There are others in the dept with issues but no room for me to remain according to my manager. There were no risk assessments done to determine my capability on the tasks she claims I’m not able to do and I would prefer an independent assessor to determine any capability. My union rep mentioned risk assessments but it was glossed over and admitted that none were done and she also mentioned the Equality act 2010 also glossed over. I am currently waiting to see what their next move on me will be. Everyone in the new dept thinks I work very hard and have also said they’d like to keep me there, however I feel it won5 be a decision they can make and that my employers still want to try to get rid of me. Any advice would be greatly received. I’m scared to go off work with stress in case they use it against me to get rid of me faster. I should mention that the capability meeting as requested by my manager when I was off with a flare up and was meant to be to discuss how to help me get back to work and where they could help through adaptations. The adaptations made were 8n my opinion working fine everything went pear shaped last time I was off work, however returned to work to receive verbal abuse by my manager but nothing I can prove as there was only he4 and I in the room at the time .

In reply to by anonymous_stub (not verified)

After 30 years working for Belfast Metropolitan college I asked my HR Department about I’ll health retirement as the redeployment that was offered was to much for me they made my life hell as I suffer with generalized anxiety disorder I was made to feel that my 30 years had accounted for nothing as they wanted me to take early retirement which I would have received 4 weeks salary instead of the 12 weeks I would be entitled to if they were to let me go through I’ll health I find it disgusting after being a loyal employee for 30 years now that I have had my contract terminated I received my 12 weeks salary now I’m in the process of trying to get my pension

In reply to by anonymous_stub (not verified)

My brother in law has been off work for several months following a heart procedure. His doctor has now signed him fit for work but his employer, a roofing contractor has advised that they cannot allow him to continue working as they cannot obtain the necessary insurance due to his health history. They have made a financial offer for him to leave after approx. 17 years which he feels is inadequate. Does he have a position to negotiate the settlement and is there a basic calculation to determine a just settlement?

In reply to by anonymous_stub (not verified)

Why is my employer refusing to terminate my contract they know that I cannot return due to my mental health disability they have received all the medical notes from my GP also from there own OCHD it seems to me that they want me to resign I’ve worked for this employer for 30 years can anybody point me in the right direction

In reply to by anonymous_stub (not verified)

My manager has singled me out for verbal warnings over the fact that I have a chest infection which is lingering somewhat. This evening, in front of work colleagues, he stated 'It is unfortunate that it has to end this way'. I took this to be a threat to my employment, despite the fact that I have numerous syrups, medicines etc. I am an insulin dependent diabetic, and have explained my suppressed immune system, but I now feel victimised for no reason. I have advised that I feel peresecuted and made an example of, as no other member of staff has been lectured for similar instances of coughing or influenza. I am a self-employed sub contractor, and this is now the 5th example of being singled out for 'disciplinary' matters, for issues which 95% of the open plan office also conduct. What are my rights?Many thanks in advance, Tony

In reply to by anonymous_stub (not verified)

I have made it known at work that I would like to retire when I sell my flat. The flat has not sold yet but in the meantime I have to undergo surgery very soon and I will need 6-8 weeks recovery. I have never given any notice of when I will retire and now my manager has said that she will get me to retire immediately I go on sick leave as if. I am on long term sick I would not be able to hand my notice in during that period then return to work for a few weeks then retire. I am concerned about my financial situation and concerned that they can make me retire when I gave never said when I was going to. Please advise

In reply to by anonymous_stub (not verified)

I got the flu 11.2.2018 I told my boss is was off for 4 days I test saying I was feeling better then they told me that I'm not wantedit bk what can I do

In reply to by anonymous_stub (not verified)

I am undergoing incapacity investigation at work as my employer indicates that sick too many sick notes have led to poor work performance. All reports from doctors indicate that I have depression and I indicated to them that it is due to too much pressure resulting from too much work as there are capacity issues that the employer agrees to.

In reply to by anonymous_stub (not verified)

I have been off sick for 6 months with back pain i had acupunture but made it worse im under the hospital at the moment my dr note runs out end of nov but dr wants me to stay off untill i have been backbto see doc at the hospital on dec 8th but my work are saying if i dont go back to work by the 18th nov i will loose my job im really stressed now as i have worked thete for 29 years i dont want to loose my job but i dont know what i should do listen to doctor or work

In reply to by anonymous_stub (not verified)

does my company must find me a job due to my health

In reply to by anonymous_stub (not verified)

i am due to take ill health retire ment on 8th june i am entitled to 30 days leave per year have take 15 day and have 15 days left my employer sate the will only carry over 20 day (this will include 15 days taken leaving 5 to be paid ) so willl lose 10 days can they legaly do that

In reply to by anonymous_stub (not verified)

Hi I have been of work on and off for two yrs. I work for nhs auxiliary nurse which involves moving handling for 30 patients.I have been under occupational health for year and adjustments made in my job to help me. By putting me in out patients making appointments ect. But sitting to long really dident help my back. I have had meeting aftar meeting with my employer and redeployment. But occupational health have decided I am not fit for work even aftar changing my job. So I am going to be medical discharged my contract terminated on ill health. I worked for nhs for 29mths. I had mri done last year which I have slipped disc and cyst on my spine. Where do I stand with this with my pension. They are offering early retirement thank you.

In reply to by anonymous_stub (not verified)

If they lifted £950 for Tibunal hearing then erase it from the article instead of lazy update like this because its confusing as bloody hell

In reply to by Jack (not verified)

Thank you for updating us on what has happened since the piece was written.

We have now added an update at the top of the article.

 

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