Dismissed - on the basis of illness

[spinach123]

Hi

I have been dismissed today on the basis of illness.
During my previous meeting with the employer, I mentioned that I will be better in 8-9 weeks. That is around 3 weeks from today. But unfortunately they didn't want to wait anymore.

Also they dismissed me without approving/declining my paternity leave/pay request which was raised more than 45 days ago. The paternity leave was supposed to start tomorrow (22nd). It was like they rushed the whole thing up before tomorrow.

Do anyone see a case for unfair dismissal here? (or) you think otherwise?

Thanks

Have they confirmed they have dismissed you on basis of illness

Am I right in thinking you wanted to start your paternity leave while you were off sick? How long have you worked there?

@FavouriteMug Yes- capability grounds

@Acheyknees Yes, I have been off sick but getting better with medication and therapy. And yes I requested for paternity leave. Around 5 years

Hi Spinich, might be an idea to chat to ACAS, could you afford initial chat with solicitor?

Depending on what has happened in terms of process you might have a case. I second the advice to call ACAS.

What's the whole story here?

How many times have you been off sick in a rolling 12 month period?
Have you been referred to any support services following poor sickness record?
Have you been to any return to work interviews following sickness and had it explained that disciplinary proceedings could take place if the sickness does not improve?

So you've been off sick a lot now want legit paternity leave too.? How do you think that looks to an employer?

This depends op. They can move to capability termination if they feel you are unable to perform your job and unlikely to be able to.

How long have you been off sick in total Inc the eight to nine more weeks, what was the reason and have you been of sick before and if so how long for?

It seems you requested paternity leave whilst still anticipating being off sick?

You may have a case but it feels like we don't have the full picture. The fact you've been there over 2 years will help your cause. Give ACAS a call, make sure you give them the full picture, and see what they say.

Only thing is that with paternity leave I'm pretty sure you have to tell your employer 15 weeks before the due date. And it sounds like you only gave them 6-7weeks notice. That said they still should have replied within 28 days saying if they could accommodate your late request or not.

Are you getting full sick pay? To get paternity pay you need to earn £120 a week in the qualifying 8 weeks. Stat sick pay is less than this, so you may not even qualify.

@FavouriteMug @devildeepbluesea Yes I will speak to ACAS. My home insurance would cover solicitor if they agree to it

Just to give a full picture to others:

I have been off for around 12 months.I am on medication, therapy and counselling. Occupational health also mentioned about improvement after counselling which I am seeing.

I was told my job might be at risk during the meetings.
During my last meeting with employer I told them I am improving.I have started to feel better with higher meds dosage/counselling and requested another 8-9 weeks for possibility of return to work.We are just 3 weeks away from that milestone.I am startled that they did not want to give me another 3 weeks.

Regarding paternity, I did not see any company policy stating that you cannot apply during your sickness period. As I understand, you can postpone your paternity to after sickness if employer is flexible. The employer were within their rights to decline if they didnt want to approve.They didnt stick to the 28 day timeline. In fact no action has been taken and its neither approved nor declined.

My dismissal letter also states about an appeal process.
They have also mentioned "pay in lieu of notice". Contractually its a 3 month notice period. Does it mean they would have to stick to 3 months in this case of dismissal.

Thanks

I think it depends on wether you’d confirmed you’d be working that period, it doesn’t sound like you had, it feels like you’ve had a year off sick and then as you were coming to the end of it, you requested even more time then requested paternity leave extending it further and requesting payment.

See what acas says but due to th fact you’ve not worked for over a year and we’re not confirming you’d come back and when in writing then I suspect the dismissal is correct, the payment for notice is more complex.

If you were entitled to paternity leave then you're correct you can delay it until after the sick leave. As along as it starts within a certain time period after the arrival of the baby.

However, if you've been off sick for 12 months, it's unlikely you're legally entitled to any paternity at all. Unless your company have been paying you more that SSP for the past couple of months.

You sound unsure about returning right now, maybe it's too soon or maybe it's time for somewhere new. So depending on what industry you're in and the demand. You might be better off negotiating a good pay off to buy you time. The company should provide you with independent professional advice before proposing a deal.

@nanabow

If you were entitled to paternity leave then you're correct you can delay it until after the sick leave. As along as it starts within a certain time period after the arrival of the baby.

However, if you've been off sick for 12 months, it's unlikely you're legally entitled to any paternity at all. Unless your company have been paying you more that SSP for the past couple of months.

You sound unsure about returning right now, maybe it's too soon or maybe it's time for somewhere new. So depending on what industry you're in and the demand. You might be better off negotiating a good pay off to buy you time. The company should provide you with independent professional advice before proposing a deal.

They don’t need to pay him off for capacity termination. They won’t do a deal. Why would they?

Please take advice from ACAS, a solicitor or a union.

Your situation is complex and there will be lots of detail to it and unless you give us detailed and comprehensive info about it we can't really advise you.

Have you previously suggested you would be ready to return in x weeks but then not been able to? A year is an extended period to be off sick and be out of the working loop, presumably they have had to arrange cover for your role. Have you ever been assessed by Occupational Health?

I worked somewhere for 14 years. I was off sick for 6 months after a traumatic incident and they started talking about my job no longer being held open. I was shocked. I did return but only worked there another couple of years before finding a new job.

www.citizensadvice.org.uk/work/problems-at-work/employment-tribunals-from-29-july-2013/making-an-employment-tribunal-claim-is-it-worth-it/employment-tribunals-unfair-dismissal-claims/legal-tests/employment-tribunals-legal-tests-for-unfair-dismissal-claims-long-term-sickness/

Have you considered applying for PIP & ESA? If successful then at least you wouldn’t have to worry so much about finances whilst going through all this work issue. Good luck.

I don't know the legal ins and outs of it, but I'm an employer. I run a small business that was hit really badly by the pandemic.
We have one staff member who has been off sick on and off for 12 weeks so far this year. We are paying her statutory sick pay, and also paying fir a replacement as we cannot be sure if she will turn up week on week.
We don't have any intention of getting rid, but I wanted to make the point that as an employer, long term sick leave can have a massive impact on a business both financially and practically.
And that's often overlooked.

Op I would contact acas, and also keep discussions open and honest with your employers and hopefully you can negotiate an exit package

@gurnnine

I don't know the legal ins and outs of it, but I'm an employer. I run a small business that was hit really badly by the pandemic. We have one staff member who has been off sick on and off for 12 weeks so far this year. We are paying her statutory sick pay, and also paying fir a replacement as we cannot be sure if she will turn up week on week. We don't have any intention of getting rid, but I wanted to make the point that as an employer, long term sick leave can have a massive impact on a business both financially and practically. And that's often overlooked.

Op I would contact acas, and also keep discussions open and honest with your employers and hopefully you can negotiate an exit package

It’s not overlooked. If you can’t afford to pay your employees, and that includes what they are entitled to whilst genuinely sick or on maternity or paternity leave, your business is not viable. Maybe you should consider that.

I actually can't believe you've been off sick for all that time yet you've requested paternity leave! Taking the piss irrespective of entitlement.

@Gooseberrypies
It’s not overlooked. If you can’t afford to pay your employees, and that includes what they are entitled to whilst genuinely sick or on maternity or paternity leave, your business is not viable. Maybe you should consider that
The poster didn't say that their business wasn't viable, or indeed that they were considering getting rid. But long term sickness, genuine or not, fact of life, is an inconvenience and a headache to employers.

It’s not overlooked. If you can’t afford to pay your employees, and that includes what they are entitled to whilst genuinely sick or on maternity or paternity leave, your business is not viable. Maybe you should consider that

That’s a fairly mind boggling response. Additional wages does have an impact on a small business, and it can be major. It doesn’t make a business unviable