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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44862
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have worked for the NHS for over 30 years. Six months ago

Customer Question

I have worked for the NHS for over 30 years. Six months ago I developed a back problem which I was told was temporary and would soon get better. In spite of treatment, the back pain has continued and affects my mobility because it hurts to drive, stand and sit for more than half an hour. My employer has made some adjustments to accommodate this by permitting me to work from home and work on the phone where possible. Occupational Health advised me to keep my driving to a minimum. I do drive to meetings that are no more thanXXXXXalthough it is painful but I never go further than this as if I do I end up in severe pain for several days afterwards. Due to these adjustments I have not had to take any time off sick at all. However, my employer is now indicating to me that the current situation is unsatisfactory as I am unable to get to all the meetings they want me to attend (it takes 1.5 hours by car or 2 hours by train to get to HQ) and I have been asked to meet with my line manager to discuss my future in the organisation. Are they able to legally dismiss me? Can you please advise what I should do? (I am 55 and cannot retire with a full occupational pension until I am 6o).
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to be able to assist with your question today.

Capability is one of several potentially fair reasons for dismissing an employee under the Employment Rights Act 1996. The definition of ‘capability’ includes competence (skill and aptitude), health (any mental/physical quality) and qualifications.

Whether a capability dismissal is fair will depend on the reasonableness of the employer's decision in the particular circumstances and the procedure that was followed. Basically, the employer needs to show they had reasonable grounds to believe that the employee was incapable of performing their job.

Case law has established that a dismissal on grounds of capability can be unfair if the following key elements have not been satisfied:

  • The employer needs to hold reasonable belief in the employee’s incompetence;
  • They have conducted a proper investigation into the capability issues;
  • The employee has been made aware of the problem and been given an opportunity to improve within a realistic timescale;
  • The employee has been provided with appropriate support and/or training;
  • The employee's progress is reviewed during the review period;
  • The employee is offered a right of appeal against the decision to dismiss.

Dismissal must always be viewed as a last resort by the employer. This is especially true if the reason their capability is affected is due to a condition that amounts to a disability under law.

Whether a condition is a disability will depend on a number of factors. Disability can have a broad meaning and there is no single list of conditions that amount to a disability under law. Instead, to establish whether a person is disabled for legal purposes, they need to establish whether they meet the legal definition of ‘disability’.

The Equality Act 2010 (“EA”) defines a disability as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.

I will break this definition down:

  • Physical or mental impairment – this can include nearly any medical condition, including progressive conditions and mental conditions such as depression;
  • Substantial effect – the effect must be more than minor or trivial;
  • Long-term - the effect of the impairment must either have lasted or be likely to last for at least 12 months;
  • Normal day-to-day activities – these are not defined but would include anything considered ‘normal’ in a person's normal daily routine (e.g. eating, washing, driving, walking, shopping, etc.)

If it appears that the employer has taken a particularly heavy-handed approach and failed to satisfy at least some of the requirements that make a capability dismissal fair, the option exists of appealing to them first before submitting a claim for unfair dismissal, subject to having at least 2 years' continuous service (and possible disability discrimination if the condition in question amounts to a disability) in an employment tribunal.

JACUSTOMER-exofg8xo- :

Ok so what do I do next?

Ben Jones :

at this stage you have to see what happens at the meeting. You need to attend that and discuss the situation with them - then see what their plans are and where they intend on taking this. You can then evaluate the situation and consider your next steps as these will depend on what the employer plans to do next

JACUSTOMER-exofg8xo- :

I suspect they want me to resign/retire early (not an option financially) or they will be working towards dismissal on grounds of ill health. I could understand that if I had had lots of time off sick but I have had none. Does that not seem unreasonable on their part particularly as my back problem is age-related and they are not supposed to treat older people any differently from younger people? Also the job itself has actually made the symptoms much worse as I have to sit for up to4 hours at a time in meetings often without a break and I spend many hours driving because they have relocated our HQ in London.

Ben Jones :

as mentioned an employer can dismiss someone if they are not capable to perform their job, regardless of age, but for this to be fair certain factors need to be considered, which I listed above. So the key is whether they have made any adjustments, if any are actually possible or of there are other positions available which you could be asked to do instead

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