Sickness - can my son be sacked ?

[DesperatelySeekingHelp]

My son has been in a job he loves for 9 months. He is really good at it and they really value him as he is really fast and good at what he does.
However, since he started he has developed horrific stomach problems. He has been off sick on and off quite a lot in nine months. This last bout has been particularly bad and he has been off for about two and a half weeks. They have a non work from home policy but he has asked if can work from home as he just needs to be near a toilet. He can’t travel in on tube as he has soiled himself about 3 or 4 times on tube.

anyway he has a Gastro appointment today and he will have a colonoscopy in two to four weeks.

he has asked again if he can work from home until appointment comes through. This way the company gets the work done and his mental health doesn’t deteriorate whilst at home.
they have responded that he has a teams call with HR tomorrow.
can they sack him ? He’s not had any official warning letters etc.

Unfortunately he may fall foul of the absence policy if he has had several instances of sickness and it could lead to dismissal. It would be as well if he could read that in advance of the meeting. They do not have to allow wfh. Did he have return to work meetings after his previous illness?

No he’s not had
any return to work meetings or warnings.

Yes.

He can be fired

For his incapacity to do the job

You can be let go for any reason within the first two years for any reason as long as it's not covered by any of the protected characteristics (race, sex, age, sexuality etc)

Just out of interest. How do you know he is really good at his job? Who has told him this? If he has been off sick many times, it won’t be easy on his colleagues. If they want to get rid of him why would they have told him he is extremely good at what he does?

He can be dismissed for any reason within the first 2 years. They don't even have to use his sickness as the reason, the employer can just give him notice and end his employment.

If he is doing a good job then you would hope his employer would be understanding but they don't have to be. His best chance is to b open about the problem, explain he is seeking medical advice and that his request to work from home will only be temporary.

I do not agree with above posters. It seems from what you say that he has developed a debilitating condition, that falls within the definition of a disability.

If he explicitly asked to work from home because of this yet to be treated condition, then he was asking for a reasonable adjustment.

Depending on what reason they denied this request he may have cause to complain to his employer that he is being discriminated against.

if they sack him he would be able to make a claim to a tribunal.

Yes he can be dismissed

I hope his health improves soon

I agree with this, i’m also surprised by the automatic ‘yes he can be sacked’.

A disability is a protected characteristic and reasonable adjustments should be made.

I’m not saying they CAN’T fire him, but they’ll need to be very careful about it. It would be different if he was off for different minor ailments all the time (stomach bug, colds etc).

Not at all. Less than 2 years employed then can get rid with no dramas.

Wrong - the two year limit does not apply to a protected characteristic under the EQA.

Discrimination claims also have much higher award thresholds than average.

Best to stick to areas of law you know about IMHO, when posting “advice”

You best understand no discrimination has happened.

no eqa to quote.

keep reading your law book. If your a professional on these matters we are all screwed 🤣

If he has a severe stomach issue that means he soils himself if travelling or going anywhere then I'd imagine he'll be diagnosed with something. Presumably and hopefully he'll have medication and treatment to enable him to work.

If the 'something' falls under disability, which it must do if said bowel issues are a symptom, then I don't think they can sack him in the way they could someone who just kept being off sick for nondescript reasons.

Though if despite every adjustment and him and the employer working together to get him back in regularly still fails and the work is still being covered by others or not done at all; ultimately they probably would have to terminate on grounds of being to unwell to fulfill the role.

I certainly hope it doesn't come to that. If he's concerned he could speak to acas.

Not if it could be proven that there has been discrimination on the grounds of a disability.

It is difficult to know whether your son's condition would meet the threshold for being a disability. How long has he had it, and is there reason to believe that it is likely to be long term (more than 12 months)?

You can't say that with any certainty on the basis of what the OP has posted.

No disability has been founded as yet as far as I can read.

from an employer point of view what would you do in business?

had he provided sick notes from doctor through all this? If so then it could be a different story

If he’s only been there 9 months and has already had multiple sickness absences then yes I’d expect he probably will be sacked

If he is really good at the job, they may be willing to consider some flexibility. It is a lot of hassle recruiting and training someone new.
Try to consider the HR meeting as an opportunity to explore what may be possible. If he shows real concern for the impact of his absence and his keenness to stay- hopefully they will be reasonable.

As it doesn’t sound like there is any diagnosis as yet, they can’t fall foul of discrimination for a disability/condition he doesn’t “have” yet.

However, a diagnosis will hopefully help his work from home case moving forward at his current job, and definitely help him in future jobs if not if he declares he has a diagnosed condition.

I’m afraid that even if they found something that would count as a disability they could still dismiss him on a capability basis i.e. that he is not able to be physically present to do the job.

However, that doesn’t mean they will do that. If he makes it clear that he is trying to be accommodating, that he is getting treatment and working towards being back at work then hopefully they will work with him.

One can suddenly develop a disability, there is no hard and fast rules about what that disability might be or how long one has had it

It isn't very clear.

He wouldn't need a diagnosis in order to meet the legal threshold for having a disability - there clearly is evidence that he has been seeking medical treatment and undergoing investigations. He would need to be able to demonstrate that his condition was likely to last for more than 12 months, if it hasn't already done so. I don't know what evidence he would require to prove this, but if the condition has already persisted for many months and doesn't appear to be getting any better, then as an employer, I personally would be treating him as having a disability - not worth going to court to test the question!!

OP, he can be sacked for having too much time off sick, but if he believes that he would meet the criteria for having a disability, then he should declare this to employer. He can ask for reasonable adjustments to help him stay in work, but ultimately they can still sack him if he isn't capable of doing the job... they just need to jump through a few more hoops than they would otherwise.

Incorrect - the Equality Act may apply even in the absence of a diagnosis. You are considered disabled if you have a physical or mental impairment that has a substantial and long-term negative effect on your ability to carry out normal day-to-day activities.

He doesn't need a formal diagnosis to be covered by the act. However, his condition would need to meet the criteria set out to define what counts as a disability.

Not if they’ve not given him reasonable adjustments. It sounds like the OP’s son COULD work from home, since he’s asked for it. The employer has chosen not to give him this option.