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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44366
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I went absent from work Feb 2014 due to a physical disability.

Customer Question

I went absent from work Feb 2014 due to a physical disability. This was then exacerbated by depression. I returned briefly to work in June for 3 days but on my first day back was informed that my employer wanted to remove the adjustments that had been agreed with Access To Work. This exacerbated the depression and I was unable to continue with the phased return and returned to sick pay. In October 2014 my GP signed me fit for a return to work in Nov 2014 with the existing adjustments in place. I was asked by my employer not to return until an occupational health report had been completed and also a new Access to work assessment. The access to work assessment did not take place until December and we received the report January. In the meantime my salary had been reduced to half pay which would have been my entitlement had I been sick. I complained to my employer and they agreed to supplement my pay with Annual Leave. I had a further meeting with them as I was not happy and in Jan 2015 they placed me on medical suspension while awaiting another OH review. This was apparently in response to the Access To Work Assessment. They have had a summary of the review which states I am fit to return and recommends implementing some of the adjustments but also says due to the chronic nature of my health problems I may have long absences in the future. They have not attempted to implement any recommendations and now they want a meeting with me on the 30/03/15 I am concerned they are trying to dismiss me.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long have you worked there for?
JACUSTOMER-7vwty3gn- :

14 years

JACUSTOMER-7vwty3gn- :

HI Ben

Ben Jones :

Apologies for not getting back to you sooner, I experienced some temporary connection issues and could not get back on the site until now. All appears to be resolved now so I can continue dealing with your query.

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', which is quite likely in your case. You would then have automatic protection against discrimination, which means that you must not be treated unfavourably because of your disability. In addition, their employer would have a duty to make reasonable adjustments if you 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.

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

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