Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How long did you work there for?
Over six years
When you say medical grounds, what were they specifically?
Anxiety, low mood, depression and strong medication to help with sleep all natural I guess following a bereavement
ok let me get my response ready please
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:
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:
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.
Thank you. I have already appealed and I am awaiting a reply
ok so you have to complete that process first and depending on the outcome you can consider your next steps but as mentioned all that can be done next is take the matter to the employment tribunal
Ok, I will do that. Also, will I receive a transcript of our chat session?
You have a few options: a) If you see a 'share' button and hover over it you can see the option to print. b) You could copy and paste this conversation into a Word document or equivalent. You can then save and/or print it and refer to it in the future as necessary.c) This conversation will be stored in your account on this site so you may return to view it or do any of the above at any time
Ok and thank you very much for all your help on my matter. It is appreciated.
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