How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Ben Jones Your Own Question
Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47875
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
29905560
Type Your Employment Law Question Here...
Ben Jones is online now

An employee has developed a heart condition whilst in employment,

Resolved Question:

An employee has developed a heart condition whilst in employment, it means that he now cannot carry out the job for which he was employed. The employer has tried to bring him back into the work place at a reduced level, but there has now been another event that took place at work whilst he was carrying out much lighter duties. He is now not able to carry on the light duties at the level that he was at. This is a condition that will be with him now for life. It is serious and life threatening. During the most recent event he almost died. He now wants to return to work again he can now do even less of the job for which he was employed. It is hoped that he will get back to the reduced level that he was after the first attack, but never to be able to carry out the full job any more.
His line manager is reluctant for him to come back until he is fit to work as he doesn't want to be responsible for sending him to a job that ends in his death, or in himself being sued for sending him on something that causes his death.
The heart condition would be considered to be a disability. Can the employer cancel his employment because he cannot carry out the job for which he was employed?
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.

Ben Jones :

Realistically, are there any jobs he could do which will not have any serious adverse effect on his health? Can doctors certify that?

Customer:

Hi Ben thank you

Customer:

Basically he is a photographer, national press. His ability to drive longer distances is affected, he has to be near a major hospital at all times, he cannot carry his camera gear anymore, and can only walk 200 yards. So really the answer is no

Customer:

also stress is a trigger, which cannot be controlled and he may encounter at any time and on a regular basis

Customer:

Doctors have already said that carrying out his normal duties would have a severe adverse effect. Even on much lighter duties, doing the easiest jobs possible he had another episode that almost killed the guy

Customer:

Ben are you still here??

Ben Jones :

yes I am, let me get my response ready please

Customer:

my apologies

Ben Jones :

no problem at all, I was only advising you so you knew where I was disappearing off to

Ben Jones :

I will respond shortly, you can wait here if you want

Customer:

ok will do

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'. If a person satisfies the relevant 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. However, in the present circumstances it would appear that there is a serious effect of doing any work and that it is unlikely to be resolved by giving him other duties. Maybe if you found him a mundane office-based position it could be the answer but if that is not possible or he rejects it then he could eventually be dismissed on grounds of capability.

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

Customer:

Yes thats great and very detailed. I am his line manger and he is a nice guy with 4 kids but seems hell bent on killing himself. I am terrified every time I send him on any job. Which really can't be right in itself

Ben Jones :

I agree - there is a limit and if medical evidence suggests that he is at constant risk an that no measures can be taken to reduce such risks then you can consider the dismissal route, even if it is not what you want to do

Customer:

Thanks Ben

Ben Jones :

you are welcome

Ben Jones and other Employment Law Specialists are ready to help you