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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46746
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have had my job terminated while being off sick. I have a

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I have had my job terminated while being off sick. I have a trapped nerve in my neck and am undergoing treatment. They decided that due to an indeterminate notification of when I would be fit to go back they would lay me off. On 25th July they called me into the office to tell me that this would be the case and gave me the opportunity to talk to someone before the next meeting in a week. I contacted citizen advice to see if this was fair, I also spoke to acas. They said that if there was an alternative position that they could offer me then they should, when I put this to them they said that it was not true. They did not know if I could do the job which was in the office, I told them that I could as I worked in an office before doing this job. They said that they didn't have to give me the job what if it was a managers job would they have to give me that. I feel that I was unfairly dismissed and would like to know if you think I have a case to take them to a tribunal . I have worked for the company for 7 years.
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. When were you dismissed and when did you submit the form with Acas?
Customer: Their letter dated 25 July States that my employment will terminate on 24 August . The letter to acas was done on line on 5 November.
Expert:  Ben Jones replied 2 years ago.
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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:
a) What was the nature of the illness
b) Was the employee consulted over their position and did the employer try to ascertain the true medical position
c) What was the likelihood of the employee returning to work or the illness reoccurring in the future
d) The effect a prolonged absence would have on the business and the workforce
e) 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:
a) Physical or mental impairment – this can include nearly any medical condition;
b) Substantial effect – the effect must be more than minor or trivial;
c) Long-term - the effect of the impairment must either have lasted or be likely to last for at least 12 months;
d) 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.
Whilst it is impossible to tell you how strong a case is unless you see a solicitor in person who will conduct a formal case analysis, you need to pursue the negotiations process with ACAS which is free anyway then decide your next steps, based on whether you manage to come to some sort of agreement or not.
Hope this clarifies your position?.
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46746
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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