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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45384
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hello, For 16 years Ive worked 37 hours per week for my present

Resolved Question:

Hello, For 16 years I've worked 37 hours per week for my present employer in their call centre. In May 2012 I became ill with a condition diagnosed 1 year later as Pemphigus Vulgaris. This affects the mucal membrane inside my body. My gums and mouth had sever mouth ulcers and ulcers in my throat have scarred my voicebox. Since May 2012 I've been off work between Sept - Dec 2012, and currently March 2014 - Sept 2014. In May 2014 my consultants confirmed my voice will not return to normal so I can no longer work in the call centre as my contract requires. I expect to return in 18 months time. So far the company have only offered me an alternative job at 25 hours per week which was unsuitable because the reduced hours would affect my final salary pension. Two other suitable positions were not offered because the jobs also 'have a high call rate'. The company cannot make me redundant as the call centre role can never be redundant. Does my employer have a duty of care to offer me a suitable alternative role or can they just dismiss me? I hope you can help me. Regards
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Are there actually any other options for alternative work which you can do?

Customer:

My question covered everything relevant. What job I move onto is irrelevant. My condition has affected my speech which prevents or restricts phone work. I just need to know my employers duty of care or their responsibility to me. Regards,

Ben Jones :

ok so realistically there is nothing else you can do to keep you in a job with this employer is that correct?

Customer:

That is not the issue. I can do any other job but I need to know if my employers have to offer me an alternative full time position.

Ben Jones :

yes but that is why I asked whether there are any other options for alternative work which you could do?

Customer:

Yes, there are other options.

Ben Jones :

ok and you said these have not been offered because of a high call rate - is that something that would limit your ability to do these jobs?

Customer:

I believe I can do any admin role which includes telephone work as nothing compares with the high call rate of a job that is 100% telephone work. But the company only offered me a job on reduced hours.

Ben Jones :

ok thanks let me get my response ready please

Ben Jones :

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.

What amounts to ‘reasonable adjustments’ can have a wide interpretation and often depends on the individual circumstances of the employer, their business, the potential impact on other employees, the available resources, etc. Whilst legislation does not currently provide specific examples of what adjustments can be made, the following are examples that have been considered reasonable in case law over time:



  • making adjustments to work premises;

  • allocating some of the employee’s duties to others;

  • transferring the employee to fill an existing suitable vacancy;

  • altering the employee’s hours of work;

  • allowing the employee to be absent during working hours for rehabilitation, assessment or treatment connected to their disability;

  • acquiring or modifying specialist equipment;

  • providing supervision or other support.


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.


Customer:

Hi Ben, there are some good reference points there that will help me. Many thanks. Regards,

Ben Jones :

you are most welcome, hope you get to resolve this

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45384
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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