Hi, sorry I tried to reply earlier but had issues accessing the site. I will first explain the law on dismissals in such situations.
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.
Now even if the job you did could have attributed to your illness, it does not mean that the employer cannot dismiss you as per the information above. What the law looks like is if you are able to do the job or not and what the employer could have done to try and avoid a dismissal. The reasons behind why you found yourself in that situation will not change your rights on dismissal. What it does mean however is that you could potentially look at a personal injury claim against the employer, or try to negotiate a settlement with them when they are aware that you may be looking at that route. However, not one can force them t agree a settlement so you have nothing to lose by trying to negotiate it but if they refuse to agree on one then you will have to look at the possible personal injury avenue.
I hope this clarifies your position? If you could please quickly let me know that would be great, as it is important for us to keep track of customer satisfaction. Thank you