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.

Has he been tested for ceoliac disease? It’s a blood test

They do need to follow procedures. Have a look at his contract and see what the sickness absence policy and disciplinary policy is. I find it hard he has had no return to work meetings, this should be standard in any job. I would have thought they would need to do a verbal written and final warning, also maybe refer to Occ health. Hr have a duty of care and if he has been signed off for a number of weeks they may have a wellbeing meeting with him, find out more about whats going on and see if they can offer any support. Try not to worry, but they can't just finish him on the spot.

Again, I would say check his contract and his company's sickness absence policy.

It’s pretty risky for an employer to dismiss someone who is showing signs of a significant health condition which could be a disability, without acknowledging that and taking reasonable steps. Case law shows that employers can reasonably be expected to know someone has a disability even if they haven’t been told that

Entirely incorrect. You do not need to have a diagnosis to have a disability (though there are other criteria)

Why would having ADHD give him any protection for a stomach problem? I wouldn't bank on it OP. From the employers point of view they need someone able to work. It sucks for your son of course but it heavily impacts the team around him when he's off work for weeks and weeks at a time. Can he take Imodium, would that stop him from having brown rain on the train? I hope he gets it sorted though the poor bugger.

This is wrong. A diagnosis is not required for a disability to be protected. That doesn't mean anyone can self identify as disabled, but anyone with a physical or mental impairment that has a substantial and long-term negative effect on their ability to carry out normal day-to-day activities is classed as disabled under the Equality Act and protected against discrimination regardless of whether their condition has been formally diagnosed.

OP's son's ADHD is irrelevant on the information posted. It doesn't protect him from dismissal for repeated absence due to a stomach condition. However, the condition he has developed may be a disability. If that is the case, the employer is required to make reasonable adjustments to allow him to continue to work. This may include allowing him to work from home, at least in the short term. If they refuse to make adjustments and sack him, he may have a case for disability discrimination.

Moving out of the bickering:

• yes, he can be dismissed for repeated sickness absences. Employers have rights to dismiss people who aren’t capable of doing the job. Under two years employment means they really need much grounds. Most protections kick in at that point.
• Yes, there are protections for disabilities. Employers have to make ‘reasonable’ adjustments. Those adjustments have to be related to the disability. So toilet related adjustments wouldn’t be related to ADHD. It’s worth him reading about the definition of disability when it comes to employment.

For constructive conversation with HR:

• emphasise that want to work, and want to be in the office. Work with them to look for solutions. A straight jump to ‘can I work from home’ will often get backs up. Whereas ‘the problem is the urgency of need for a toilet, and need to clean up fully and quickly if don’t get t there in time’. It makes the journey difficult, and also there are no showers in the office to clean up with if that’s needed. If it’s not 24/7 then office on days it’s not flaring up could be an option.
• have read the sickness, the flexible working, and the disciplinarys/y policies first.
• know the notice period he’s on
• say yes to occupational health offers
• emphasise how much are pushing health service to get support and find solution

Submit a request for reasonable adjustments. If his condition is likely to last longer than a year, likely it's classed as a disability so I'd ask (in writing).

Not if he has a disability. They've got to consider whether reasonable adjustments can be made to their policies and procedures and that includes their attendance/WFH policy. Even the Post Office has to build in adjustments for disability to their attendance policy and that's a business where punctuality and reliable attendance are absolutely critical. They might still be able to dismiss him for capability but they absolutely should not assume that they can.

If you're running a business on the basis that you can "get rid" of any employee without issues as long as they've been working for less than two years, all I can say is that I hope you've got legal expenses insurance in place.

As a business owner he can be sacked
Illness is not a disability
In that situation I would ask HR to discuss the employees circumstances
We have a no work from home policy which I would not change
No company can be expected to keep paying a member of staff who is unable to work long term
It is not fair o other employees
Companies exist to make a profit they are no charities
Personally I would far rather go to a tribunal anyway and have to pay a few months money which is usually is than to keep paying someone indefinitely who is not performing as that is far more expensive and affects moral of the staff

I am sure you do not run your own business
I would rather have to pay a few months salary that keep paying someone for months who cannot contribute

Definition of disability:

https://www.gov.uk/definition-of-disability-under-equality-act-2010

They may be able to dismiss him as his protections are limited under 2 years of service. To the posters who have mentioned disability, you can only rely on disability discrimination if there has been a substantial or long-term negative effect on the individuals' ability to do normal daily activities. It's not clear from the message how long this has been going on exactly, but courts usually want to see a substantial negative impact for at least 12 months, for it to be considered a disability. And even once he has a diagnosis, there is only a limited number of conditions that are considered disabilities automatically (cancer being one of them).

I would recommend he is honest with HR tomorrow, about all he is doing to get a diagnosis and hopefully treatment, with having appointment dates already. That he is committed to the job and wants to make it work. From a business perspective, it costs a lot of time and money to recruit someone and train someone new. They already invested in him to train him up and if you say he is performing well when at work, a simple cost analysis by them would hopefully lead to the conclusion that the best option is to keep him at work and allow for short term adjustments. But that will depend on the company. Small companies in particular don't always behave rationally.

Good luck op!

This.

To not get sacked he will need to establish that his digestion problems amount to a disability and that he will be able to do the job with reasonable adjustments.

To be a disability, a physical or mental impairment must have a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities. "Long-term" generally means lasting or likely to last at least 12 months, while "substantial" means more than minor or trivial.

If his symptoms are due to him developing a life-long condition like Coeliac Disease (which can appear at different life stages wg at the end of puberty or at menopause) and his current illness is due to that not being recognised/understood and treated correctly then he is covered by anti discrimination legislation so long as he will be able to do his job in full once he has correct treatment in place and appropriate reasonable adjustments.

His statement at the meeting should be along the lines of "I am hugely enthusiastic about my job here and I want to return to work as soon as possible. The illness I have been experiencing seem likely to amount to a diagnosis that will, once fully understood, amount to a disability which I will be able to manage, with reasonable adjustments, once the right treatment is in place. Once that happens I expect to be a fully functioning employee again and I just need your patience while we get to that point. Getting used to a new disability is never easy but I don't have enough information yet to know what those reasonable adjustments are going to be."

If they ask any further questions should be answered with repetition of "I'm in the middle of dealing with a new disability, I don't have enough information to answer that yet but I am keen to do so as soon as I can so I can get back to work, but I need your patience in the meantime"

I hope your business acumen is significantly higher than your comprehension or reasoning abilities

Oh, I'm self-employed. Can't think of anything worse than trying to employ anyone. I suppose if you're happy to settle to avoid a claim then that's up to you but it might be cheaper to take a couple of hours to think about adjustments first?

I’m fascinated as to why you use the Post Office as the example?

I’m so glad I don’t work for @sashaski. Sounds like a wonderful place to work…!

I have multiple illnesses that would be construed disabilities. But no business owner owes you a living. Especially if you’re there less than a year. Find ways for him to deliver. Maybe he could wear a pad and change it once he’s in work? Lots do exactly that. Persuade them that he can do this job without too much disruption. Just the odd hospital appointment. But they won’t change their policies for him. That is your best bet. You need to show this is a minor blip. They absolutely don’t have to fund him. It’s losing them money. They owe him nothing with nine months’ service, which is probably mostly training, costing them money. I would minimise it myself.

We've no idea the nature of his job or whether working from home would be considered reasonable. If he works on a reception desk WFH isn't a reasonable adjustment

It's a business where in some roles being physically present and reliably punctual is really key. Not the only one by any means, just one that came to mind.

Only if he can demonstrate that there has been discrimination on the grounds of a disability.

He doesn't need a diagnosis to meet the definition of having a disability. He would need to be able to evidence that his condition was a disability though, so he can't just "self identify". Ultimately, it would be for a court to decide.

Illness can be a disability. So you're wrong on that.

Up to you if you want to expose your business to a discrimination claim by taking a risk on it. Discrimination awards are uncapped so I wouldn't risk it personally.