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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44358
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Couple of questions, hope you can help. My husband is on long

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Couple of questions, hope you can help. My husband is on long term sick from his work having been off now @ 7 months. He no longer gets any SSP from them and has a meeting with his HR dept on 6/2/14 with a view to the employer terminating his contract. They have contacted his GP who has written back stating there is no chance of him returning to work for the foreseeable future. His illness is classed as a disability and is therefore he is currently getting DLA (PIP) and has been awarded a blue badge for parking. We would like to know where he stands as far as his employer terminating his contract - can they just do that? Also where he stands regarding benefit he currently receives ie housing / council tax. Is he making himself unemployed and also we would like to know what should be the wording from his employer on his termination letter?
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How long has he worked there for and what is the reason for his absence?
Customer: replied 2 years ago.

He started work September 2012 and he has severe asthma, pulmonary embolisms and oesophila (both diagnosed Aug 2013) . he first got ill at work in June 2013 and has been off since then. He is currently under the GP, local hospital consultant and has an appt in March to see a specialist at the Royal Brompton in London. His company were paying him SSP but that stopped end of December 2013.

Expert:  Ben Jones replied 2 years ago.
Capability, where an employee is unable to perform their job due to ill health, is a 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 particular circumstances and the procedure that was followed. The employer needs to show they had reasonable grounds to believe that the employee was incapable of performing their job and that nothing further could be done to assist them. In the end they need to show that dismissal was a reasonable decision to take. The courts have held that an important consideration is whether any reasonable employer would have waited longer in the circumstances before dismissing the employee.

When looking at the reasonableness of such a dismissal, the tribunal will usually look at the following elements:
• What was the nature of the illness
• Was the employee consulted over their position and did the employer try to ascertain the true medical position
• What was the likelihood of the employee returning to work or the illness reoccurring in the future
• The effect a prolonged absence would have on the business and the workforce
• The availability of other suitable employment that the employee could do instead

Dismissal must always be viewed as a last resort by the employer. Only when it is obvious that the employee cannot continue in their job and that there was nothing else available for them to do would dismissal become a fair option.

It is also important to consider the additional rights someone would have if the condition that is affecting them amounts to a 'disability'. This 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, they need to show they satisfy the legal definition of ‘disability’.

The Equality Act 2010 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;
• 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 could include anything considered ‘normal’ in a person's normal daily routine (e.g. walking, driving, speaking, eating, washing, etc.)

If a person satisfies the above criteria, they will be classified as being disabled and will have automatic protection against discrimination, which means that they must not be treated unfavourably because of their disability. In addition, their employer would have a duty to make reasonable adjustments if they are likely to be placed at a substantial disadvantage when compared to non-disabled employees.

So in summary, if the employer has not taken time to investigate the true medical position, whether suitable employment was available and generally considered the effects the employee's continued absence would have on the business, any dismissal could potentially be unfair. In addition, if they have failed to make reasonable adjustments in the event the employee's condition amounted to a disability, this could also amount to disability discrimination.

The first step is to formally appeal the dismissal with the employer using the internal appeals procedure. After that all that can be done is to submit a claim for unfair dismissal in the employment tribunal (subject to having at least 2 years' continuous service), and/or pursue a claim for disability discrimination.

In terms of benefits then these will depend on his personal circumstances and he is best advised to use this tool to see what he may be eligible for:

He is not making himself unemployed – he is being dismissed by the employer.

I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you and feel free to bookmark my profile for future help:
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44358
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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