Can they fire me? Long term sick leave

[CanTheyFireMe]

Name changed for this as other posts are identifying. This post probably is too but I guess I'll deal with that if necessary. Posting here for traffic as I'm massively panicking.

I've been on long term sick leave from work, signed off by GP for the last ~3 months. I also got signed off for about 2 months late 2020 and had a phased return to work. I work an office job for a large company. For context the pandemic hit the company hard and they are struggling financially, I don't know if this affects my case.

I'm diagnosed with mixed depressive and anxiety disorder but I think I have ptsd due to a traumatic event in my early teens. However when I was diagnosed I wasn't really believed/taken seriously so I don't think they considered a PTSD diagnosis. Psychiatrists I've seen since and mentioned PTSD which is why I bring it up. I have horrible nightmares, anxiety, frequent extremely low moods and suicidal thoughts, difficulty sleeping, my concentration is totally shot. Plus more but that's the basics. This has made it impossible for me to do my job which requires full concentration all day and is kind of stressful. I've been trying to get therapy for years but for multiple reasons all my attempts have basically failed in the end. e.g. One provider kept sympathising with my abuser, I honestly think things have been worse since that. Waiting lists are months and months long.

I switched antidepressants recently and had been starting to feel a bit better, able to do a couple of bits around the house every couple of days and my anxiety has been a lot better. I don't think i could do my job yet but I'm seeing a light at the end of the tunnel I think. Work also said they may be able to pay for some trauma therapy for me and referred me to occupational health.

The occupational health appointment was this morning, I missed it. I hadn't been able to get to sleep until a couple of hours before the appointment and I slept right through my alarm. I completely forgot the appointment was today in my panic about not sleeping. I can't believe how fucking stupid I am honestly. My boss is very busy so I've tried rearranging it myself but I don't know if I can do that or if they'll need another referral from my boss. I don't want to piss off my boss because I feel like I'm relying on their good will to keep my job right now. Obviously I let my boss know, over message, and apologised about 5 times.

OH sent me a summary of the missed appointment which included the questions my boss wanted them to answer in the assessment. It was things like, can I return to work in the next month, will I need more sickness absence. This has massively compounded my fears after missing the appointment and now I'm feeling like I'm going to get fired. I don't know if I can return to work in the next 4 weeks or if I'll need more sick leave in the future. I need proper good therapy which I don't think I'll be able to get any time soon if work don't pay for it. The antidepressants are helping so far but it's not enough. I don't know if we'll be able to survive on just DP's salary and honestly I don't want to do that to him. I'm already a shit partner with my depression, I'm useless. And I love him so much. I already don't earn very much as work have been holding off a big payrise until I'm back - if they'll even still give me that anyway - which is why I can't afford the therapy but obviously one person's salary is a big difference. We're young and I'm not qualified to do anything but my field. I don't think I could cope with getting a new job right now. And I'm scared how losing my job would affect my mental health even more.

Sorry this post has been a long rant I wanted to give the details. Basically I've fucked up by missing this appointment and just generally being so ill and I'm terrified I'm going to lose my job. Can they even do that? The doctor signed me off sick so I thought I'd be okay but now I'm not so sure. I'm spiralling so much already and I'm so scared. Is there anything I can do to show willing? What would you do?

Thank you so much for anyone who reads this.

They can sadly

If you’ve tried reasonable adjustments and you still can’t work. Then they do need to look at letting you go. Sickness doesn’t mean you get to keep your job and being paid indefinitely sadly

I understand you’re struggling. But your employer might also be struggling. It’s a lose lose really.

The OH appointment is to advise the employer of any likely return and anything they can do to support that. The questions you mention are standard.

Ultimately though, if a return is not possible within a reasonable time frame, I imagine they will move towards either a dismissal or a negotiated settlement.

I'm in/was in a similar situation OP. Part of your illness is that you have a difficulty concentrating and focussing. This almost certainly is the reason that you've missed the appointment. You need to focus on it being the symptoms and not you. You've worked for years in a stressful job, you can do it, but you can't whilst you are ill.

I've no idea about employment law or yoiur contract, but your company is showing that they want to work with you and get you back. You have value to them. Ultimately you might need to consider finding something that you can do as it may be that you cannot do this job in the long term. You must remember though that lots of people have a mental health episode that renders them unable to work for a time but that most make it back to the job they were doing and progress as well or find something more suited.

I'm at that point at the moment. I was off for 5 months (I've been working for 38 years and in my current job for 19) and I returned on a phased return a few months ago. However due to a number of factors outwith my and my immediate bosses control, that period ended up wasted due to IT issues. A number of the elements they were putting in place to support my return also didn't happen, so I essentially ended up in a high stress situation with client deadlines etc. I'm not coping well to be honest. Work do want to keep me so trying to find a way to give me lighter duties for a while (happy to take a pay cut if required) and have said if I want to work less hours (also with a pay cut) then they would be happy to look at that. My issue with the latter is that there would be more pressure to do the same work in less time and it's the complexity and reliance on decisions that I make that i'm finding hard.

I honestly don't know what i'm going to do but it's increasingly likely that I will need to find another job.

MissLucyEyelesbarrow

ArseInTheCoOpWindow
Quite shocked at saying you should be fired. People get I’ll all the time. And got long term stuff. But they recover.•

The key thing is how long you’ve had anxiety and depression. If longer than a year then you are covered by the Equalities Act and it becomes much harder to fire you.

And they can’t just dismiss you. I think you would need 3 written warnings

Everything in this post is wrong

No it isn’t. I’ve been through the processes with mental health absences and had union support.

*Saying her current employer should sack her because of her current inability to work is a bloody nonsense

With the exception of 1 numpty, I haven't seen anyone suggest that her employer should sack her. Most PPs have answered the OP's question, which is can they sack her?*

I was only responding to one specific poser there. I’ve said myself in a previous post, her employer can dismiss her after following their internal procedures.

I think the OP has done the right thing in stepping away from this thread.

Start by looking at their sickness absence policy. They vary from employer to employer. Under the Equality Act they have to treat everybody the same. So will need to follow that policy. If you haven't got it, ask for a copy. Then see how your absence record fits with those rules. But sadly an employer doesn't have to keep you on if you're not fit for work. They're not responsible for your lifelong welfare. They should follow a process though. You may be able to claim benefits if you're too ill to work. But see where you stand before you panic. Citizens Advice might be helpful with benefits and interpreting the policy rules if you're unsure.

We had a lady on long term sick. Hr followed the legal route. Once it became obvious that she wasn't able to return to work, past a certain time frame, she was let go. She went on to claim government benefits.

Again, depending on the nature of OP's work: some employers will negotiate some kind of leaving settlement (particularly if the employee's ill health is partially or entirely caused by some kind of industrial injury).
And there are times when it is a better solution for the employee to resign, spend time getting better and then look for another job - especially if the illness has been MH-related and colleagues have been covering for a long time at no extra pay - you'll be returning to an atmosphere of resentment that won't do you a lot of good.

It's also worth noting generally that, while some employers are rather too quick to get rid of staff for being ill, some companies can find themselves lumbered with staff members who are lazy whiners great at milking the system - going off sick, coming back just in time not to get sacked and then going off sick again (usually with some vague, unspecified MH issue that no one can argue with), therefore restarting the whole process...

It depends how long you have been there, how valued you are and how much they can afford for this to continue.

I think those questions are quite reasonable and your employer wants a professional view of whether or not you can do the job and when you can go back.

I was off for seven months once and my OH stated in his report that I could return on phased return but not in the same role or with the same manager. He recognised that my anxiety was directly related and due to my manager.

I think it is about showing willing though. I would have a think about when do you think you might be able to return?

If you cant do the job they will let you go reasonable adjustments are just that not anything goes

Can they- yes. Will they or it is an option being considered is another matter. I think OP you need to seek advice which I certainly could not give you.

You need independent advice from someone who can look at the details of your particular case. Are you a member of a Union? Its also worth checking your house insurance to see if it includes legal cover (quite common).

I'm surprised the OH sent you those questions. Not because the employer wants to ask them but because their brief to OH is written for them rather than them repeat the blunt questions verbatim.

Also surprised your boss made the referral rather than HR - do you have an HR department to manage these situations?

It may also be worth checking your employer info for PHI. Some companies have PHI policies to cover their employees for a percentage of salary longer term after company sick pay tails off. Ours has PHI which cuts in after six months of illness (we pay the first six as sick pay). This is commoner than people realise and can take the pressure off return to work in favour of focusing on recovery.

Yes of course they can.

If you engage with them and they can see progress towards a return then it would be unreasonable to sack you.

If you don't and they can't you can't expect them to keep you indefinitely.

The purpose of the OH assessment to obtain a prognosis for your recovery and whether there are any reasonable adjustments your employer can consider to support you back to work. Nobody can promise that dismissal can't happen but it should be a last resort only.

I don't think from your op you sound well enough to make decisions about your future at this stage, and I would disregard the posters here who suggest that you should resign your job. I also don't think it is helpful to speculate on what the employer may be planning to do.

For now I suggest you engage with the process and take things a step at a time....first thing is to ensure you attend the new OH appointment and consider when you think you may be well enough to return, any adjustments to consider which may help you return to work (eg reduced hours/workload/another phased return?) if they can accommodate these.

Once you are feeling better you can honestly consider whether you are likely to do the job long term; your priority now though is to look after your wellbeing.

@ArseInTheCoOpWindow

MissLucyEyelesbarrow

ArseInTheCoOpWindow
Quite shocked at saying you should be fired. People get I’ll all the time. And got long term stuff. But they recover.•

The key thing is how long you’ve had anxiety and depression. If longer than a year then you are covered by the Equalities Act and it becomes much harder to fire you.

And they can’t just dismiss you. I think you would need 3 written warnings

Everything in this post is wrong

No it isn’t. I’ve been through the processes with mental health absences and had union support.

You may have been through the process as an employee, but you don't appear to understand what the employer can and cannot legally do, so would be best not making up nonsense things like 3 written warnings.

To be clear, since the multiquote could be confusing, I was responding to ArseInTheCoOpWindow. In my view, MissLucyEyelesbarrow is correct.

I really hope the OP is no longer reading this thread.

The basic, unwritten contract of employment is that you will turn up and do the work, and your employer will provide work for you and pay you to do it.

If you can't fulfil your part of the contract then yes of course your contract will be terminated. The employer has to follow certain procedures and ensure they give you the chance to come back, but if you can't then they won't keep you on (whether on full, half or no pay) forever. If you can't work with them to attend appointments etc then things may move forward more quickly - but I'm sure this one thing won't massively affect the eventual outcome. If you were genuinely too unwell to go then they would perhaps be more sympathetic that just sleeping through your alarm - but all you can do now is do your best to follow the procedures as best you can.

I'm sorry you are in this position but if you can't go back within a reasonable timeframe then you will need to either find a different job or stop working until you (hopefully soon) feel better. Good luck.

An employment contract that does not almost explicitly say that…. Is a flawed employment contract!

@ArseInTheCoOpWindow

MissLucyEyelesbarrow

ArseInTheCoOpWindow
Quite shocked at saying you should be fired. People get I’ll all the time. And got long term stuff. But they recover.•

The key thing is how long you’ve had anxiety and depression. If longer than a year then you are covered by the Equalities Act and it becomes much harder to fire you.

And they can’t just dismiss you. I think you would need 3 written warnings

Everything in this post is wrong

No it isn’t. I’ve been through the processes with mental health absences and had union support.

In sorry but your post is actually wrong. You don’t need written warnings for capability termination, that’s for misconduct type or poor performance, which is very different, and you don’t always need to actually wait the year for it to be classified as a disability, many impairments are immediate classification, Ie cancer.

In this instance I think the op would likely meet the criteria for being disabled, but an employment lawyer would heed ro look at that, with doctors to see her prognosis for recovery.

Howver it doesn’t mean her employment can’t be terminated even if she was legally classified as disabled. It can.

You’re suggesting she’s in some way protected if she’s classed as disabled, but other than reasonable adjustments, this situation is very different, because she’s not capable of doing her role at all and is as yet unsure when she will be able to.

She asked if her employment can be terminated, and the ultimate answe r is yes, it can, but the employer needs to look at what support they can give her, her prognosis, when she expects to recover, her doctors reports etc, before deciding if it’s reasonable to support further, or if it’s unlikely she will be back any time soon.

So for example if she had x medication and x therapy she could be anticipated to be back in x weeks, and decided by her doctor. If with therapy and medication that is uncertain, then it is possible they may terminate,

The other option is of course the op can ask for a career break for a year, to focus on her recovery, but there are no laws around this and the empkoyer can decide at the end they have no place for her.

Op, I'm really sorry for you, this sounds awful.

I am qualified to advise on this but I think doing so with limited information could do more harm than good. What I'd strongly recommend is you engage with oh, with acas and potentially with an employment lawyer. Look over your contract and your staff handbook or absence policies if you don't have one. Your employer must follow their own policies.

As an employer, you are obliged to make reasonable adjustments to support employees in these situations. Sometimes you can do that in a way which keeps them employed, sometimes you unfortunately just can't. I've been in both situations and hope yours is the former. Working with oh and communicating with your employer is the best thing you can do, in my opinion.

Take care of yourself. Wishing you all the very best.

@Doggydoodah123

If you are unable to fulfil the job requirements and this is a long term issue then the job should be offered to someone who will actually turn up and do it.

Wow, way to hit someone while they are already down. Am glad OP said they were leaving the thread.

Some disabilities can be immediate eg cancer but it is t the same for mental health. In this case there needs to be some evidence of a history. Otherwise everyone who had one episode of mental illness would be classified as disabled.

If it is a disability the employer should try and make adjustments before they dismiss. And a tribunal would look for that.

As an employer, you are obliged to make reasonable adjustments to support employees in these situations. Sometimes you can do that in a way which keeps them employed, sometimes you unfortunately just can't. I've been in both situations and hope yours is the former

I think you’ve misread the op, she’s not asking for reasonable adjustments, she’s unable to work at all, and is doubtful she can do so in the next month, and is requiring them to pay for extensive therapy to get her back to work at an undisclosed time.

She is not asking for reasonable adjustments, for that she needs to be able to work, she’s not well enough right now, it’s a different animal.

@Bluntness100 Occupational Health would help her look at this. People cant always think of reasonable adjustments without help.

@ArseInTheCoOpWindow - im afraid your post was wrong. There is no requirement to give three warnings for capability termination (although an employer has to act reasonably which usually means following a fair process). Also just because a condition lasts for more than a year doesn’t mean it necessarily qualifies as a disability. If someone can’t do their job, they can be lawfully dismissed. Whether or not that should be the case is another matter but it is the case.