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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47917
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hope you can advise me.I work for a County Council since

Resolved Question:

Hope you can advise me.

I work for a County Council since 1997 and I am reg disabled as I have several illnesses 2 years ago I was bullied every day by my then line manager I started to become depressed in a meeting with our H.R and my Union rep she made a comment and shortly after was moved on I thought I was getting over the way I began to feel about myself, it must have hidden underneath the surface. Lat year I had to go into hospital for an operation on my shoulder I was informed by the Consultant that it would be between 6-8 months recovery I was back at work within 3 as had a lot of work pressure. When I returned to work to speak about my back to work return I was informed that I no longer had my job all my specialist equipment had been moved and I was going to be doing another job a very boring job working for my line managers. I found I was treading on eggshells all the time and became very depressed crying all the time felt like I was not able to do the work. January I could take no more and had to go to the doctors and was signed of with Work related stress and depression. A few weeks ago I had to attened a meeting with H.R Union and Line manager it was made clear at this meeting that they did not want me to return to work before I was ready they could not have done enough. I felt a bit better after meeting and was thinking of doing my return to work and I July when I am 55 taking flexi retierment, but then out of the blue I received a call from line manager to say they are taking me down stage 3 of the caperbillity route. Yesterday I went to a informal meeting with my line manager and was told that I could be dismissed just like that. She asked me what I wanted and I said flexi retierment she then replied what if you ever get sick on the days you are due to work, then started going on about the panel and stresses of the upcoming meeting and I could be dismissed, she then said there is some other option for me a mutal agreement where I just leave. I dont know what to do does this mean I will not be able to take my pension at 55 if I am dismissed or leave.

Sorry this is so long, but had to get most of it out as I don't think the union have been that great.

Thank you
Anne
Submitted: 4 years ago.
Category: Employment Law
Expert:  Ben Jones replied 4 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. For now please let me know how long you have worked there.

Customer:

I have worked for Hampshire County Council since September 1997.

Ben Jones :

First I will deal with the legality of a potential dismissal. 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.


 


In terms of your pension, that would depend entirely on the scheme you are in and what its rules say about this. You need to check with the scheme providers what you are entitled to and whether your ability to draw your pension early will be affected by the way you left your employment. This is not a legal matter as such, it is something that would vary from one case to the next and would depend entirely on what the scheme rules are.

Ben Jones :

I would be grateful if you could please take a second to leave a positive rating - your question will not close and I can continue providing further advice if necessary. Thank you

Customer:

Thank you for your advice.

Customer:

Thank you for your advice, you have helped me a lot. Great service I would use again. I

Ben Jones :

You are welcome

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