Sacked for being sick

Hi Busybee,

Thank you for posting a question to our Work support advisers. I'm Eliza from the Community team. I am just responding to your message to let you know that our Work support team have seen your question and are working to respond to your question as soon as they can. We hope you will find it helpful to hear from our Work support team and are able to access the right support.

Best wishes,

Eliza

Macmillan Community team

Hi Busybee

Thank you for your query. My name is Stacey. I am a Work Support adviser who can discuss your employment rights at work. Please find my advice as below for the situation as you describe.

I’m sorry to hear about you receiving a letter about your dismissal which had followed little support from your employer during your sickness absence.

I would like to outline any protection that you might have against dismissal. Firstly, if you have been dismissed unfairly, and secondly as whether you have protection under the Equality Act 2010 (Disability Discrimination Act 1995 in Northern Ireland) for discrimination against an employee who has a protected characteristic.

Firstly,  I would like to address your rights in being dismissed. If your employer has not followed the proper procedures and you have been employed by them for more than 2 years (1 year if living in Northern Ireland), your dismissal could be seen as unfair. In this case, if you live in England, Scotland or Wales you might appeal against your dismissal or approach ACAS. If you live in Northern Ireland you would approach the Labour Relations Agency:  the Labour Relations Agency

They can conciliate between both parties and if unsuccessful may result in taking the case further to an Employment Tribunal. Here is a link to find out more about ACAS procedures:

On-line advice and on the ACAS helpline: 0300 123 1100 (Monday – Friday 8-6pm). Their services and support can also be accessed on: www.acas.org.uk

The timescale for taking a case to the tribunal is 3 months minus 1 day.

An employer should follow a fair process and their own long-term sickness absence procedures. Long term sickness absence can often be described as long term if over 4 weeks unless stated differently in your terms and conditions. It is disappointing that your employer has not been more supportive. If your employer has a sickness absence policy it should outline how often or what triggers they may have to contact you.

ACAS (Arbitration, Conciliation and Advice Service) produce guidelines for an employer on the subject of long term sickness absence.  

 https://www.acas.org.uk/absence-from-work

An employer can terminate employment if the employee is not capable of doing their job, but they should follow a fair procedure. This can include looking at the possibility of returning to work within a reasonable time frame.

If you have been employed for less than 2 years in England, Scotland or Wales , there is no right to declare that your dismissal is unfair and to take the matter further to an Employment Tribunal unless it is classed as an automatically unfair reason. Please find the link to the Citizens Advice website that explain the reasons further:

 https://www.citizensadvice.org.uk/work/leaving-a-job/dismissal/check-if-your-dismissal-is-fair/

An exemption from the 2 year time frame would also be that an employee has been wrongfully dismissed due to (for example) their terms of notice and notice pay being incorrect. If there is a breach of contract where an employer has contravened their own terms of contract (for example, this might be if an employer has failed to follow their own disciplinary or dismissal process) this would be a point that an employee might take further.

Secondly, a cancer diagnosis is automatically classed as a disability under the Equality Act 2010 if you live in England, Scotland or Wales (Disability Discrimination Act 1995 in Northern Ireland). You would have protection under this Act if you were dismissed due to your employer learning of a cancer diagnosis and dismissing for this reason.  They should have considered any reasonable adjustments that would enable the employee to return to work before considering dismissal. They should look more favourably on any sickness absence for this reason.

If your employer decided to dismiss you because they believed you had cancer, or because of the cancer treatment you received during your sickness absence, it would be a reason for discrimination. This may also apply if you were confirmed at a later date with the same diagnosis. A condition which is not cancerous would not automatically have protection against discrimination. You do not say if your condition has been the result of a long term health condition which can sometimes enjoy similar protection – but this is not automatic.

It can be helpful if you are in a Trade Union as your representative could support you in appealing against your dismissal.

Finally, as you can see, there may or may not be protection that applies to you. If we have any further information in relation to your query we will upload a further reply to the enquiry. In the meantime, if you would like to discuss the matter further, you can do this by replying to this post, via webchat, emailing us or you can call us to talk through your situation in more depth and we will be happy to help.  We are available on our helpline between 8am to 6pm Monday to Friday on 0808 808 0000 option 1, then 2, then 3.

Hi Busybee

Here is some further information about the possibility of you being dismissed because your employer thinks you are disabled.

It may be seen as discrimination by ‘association and perception’ if an employer has treated an employee less favourably because they perceive that they are disabled, even though they may not be, and dismisses them as a result.

If you feel that this may apply to you, contact the sources given in the previous message or by contacting us by reply to this post, via webchat, emailing us or you can call us to talk through your situation in more depth and we will be happy to help.  We are available on our helpline between 8am to 6pm Monday to Friday on 0808 808 0000 option 1, then 2, then 3.

Hi Stacey I started working for this company in September I told them from day 1 about my tumor. Right I'm up in the air with this I've got tumor on my kidney not sure if malignant they are sending it off to be tested once out consultant said 70% to 30% could be malignant so I just don't know. Hate being in this situation I'd rather know so can deal with it than waiting 

Hi Busybee

Thank you for your reply. I am sure that it is a very stressful time for you. Whilst you are waiting to hear more about your health, could I suggest that you ask if you can appeal against your dismissal and ask for a reason. As you have only just stated working there, they are not obliged to give you a written reason, but it would be helpful to know.

Also, if you have any medical concerns, it might be useful for you to talk to our nurses or to our Customer Information Team for any emotional support during this difficult time.  

Hi yes my union rep is appealing against this he sent them an email on Wednesday still waiting on reply. Sorry my head all over the place right now 

Hi again Busybee,

I hope you don’t mind me responding to you. My name is Emma and I work alongside Stacey on the Work Support team. I have read through yours and Stacey’s messages and I can completely understand why your head feels as though it’s all over the place and can appreciate what a worrying time this must be for you. As you’ve given us more information through your messages, I thought it might be useful to recap through where you are now and what your next steps might be. Please do remember though if you need someone to talk to about how you are feeling, either via webchat, email or you can speak to our Cancer Information Support Team on the Macmillan Support Line between 8am to 8pm every day by dialling 0808 808 0000 option 1, then 1.

I’m really pleased to hear that you have the support of your union and that they have approached your employer to try to appeal against your dismissal. We would always recommend this as the first stage in trying to resolve a situation such as yours.

Whilst you don’t have protection from unfair dismissal as you don’t have 2 years’ service, you do have protection from discrimination by association/perception. You have told us that your employer has been aware of your potential cancer diagnosis from your first day at work and so it may be possible to argue that your dismissal has been linked to the fact your employer thought you may have cancer; for example if you think they have dismissed you due to having to take time off which could be cancer related. You also mentioned the abrupt messages and emails you have received. If you do receive a cancer diagnosis, there may also be a case for harassment, which is a form of disability discrimination. When you are feeling less confused, you may want to read our booklet “Your Rights At Work” as this explains about the different types of discrimination.

If you feel that this is the case, you could take your case to an Employment Tribunal. As Stacey said Tribunals have strict deadlines of 3 months minus 1 day from the act of discrimination to lodge your claim. Before going to a tribunal, it is mandatory to complete Early Conciliation. This is where either ACAS (in England, Scotland and Wales) or the LRA (in Northern Ireland) will talk to both parties and try to negotiate an agreement on how to move forward without going to Tribunal.

When your mind is feeling clear enough, I would also suggest writing yourself a timeline of events and correspondence between yourself and your employer. This will help you be clear on the strengths of your case and may help you if you decide you wish to progress.

I do hope you manage to agree a way forward with your employer, however if you do need any further support, please do come back to us by either responding to this message, via webchat, email or you can speak to us on the Work Support between 8am to 6pm Monday to Friday by dialling 0808 808 0000 option 1, then 2, then 3.

Kind regards,

Thankyou Emma thankyou for your advice. So the union rep did try. But the company won't change there decision they say there probation period is 6 month. I just think they have no compassion they was not paying me as I was only getting ssp. 

Hello Busybee

Thank you for your further comments on your dismissal. My colleagues have already mentioned that if your dismissal was related to your employer’s perception that you have a cancer diagnosis then you may have suffered disability discrimination.

It is up to the judge at an employment tribunal to decide whether you have suffered discrimination and if you are due compensation.

To make the best case for yourself we suggest the following:

1. Seek legal advice from your Trade Union via your Union Rep
2. The legal advisor will need to see copies of your contract, any letter/emails, and details of any relevant company policies.
3. It is important to gather all the relevant communications you have had with your employer in date order. The timeline mentioned by Emma is so important.

The deadline for submitting a claim to an employment tribunal is 3 months less a day from the date that you were dismissed.

The next step is to talk to ACAS about starting early conciliation. This can be started online with the completion of the ACAS early conciliation notification form. If you live in Northern Ireland then the Labour Relations Agency deals with early conciliation.

ACAS Is the impartial conciliator in this process so they cannot advise you. They have six weeks in which to achieve a settlement with your former employer. If a settlement is not possible then ACAS issue a certificate with a reference number which needs to be included on the employment tribunal claim form.

Completion of the early conciliation notification form stops the clock. The clock will restart as soon as ACAS provides the early conciliation certificate. I hope this information is helpful.

Whether you proceed with legal action is up to you and your legal adviser who can tell you whether you have a good case.

Please have a look at the information on the Citizens Advice website and Here