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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48176
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have worked company years and now suffer with

Resolved Question:

I have worked for my company for 15 years and now suffer with heart conditions etc; I also recently registered as disabled due to its effects.
I now admit having struggled going to work every day as I felt completely drained.
Had been on reasonable adjustment for some time at work with the regular performance management reviews which have been ok and on target.
During recent meetings it was highlighted that the company was becoming more efficient (which I know as we all worked hard to achieve this), the task I was doing on a daily basis would need less people.
Told I would have to carry out additional duties to meet the new company policy, which then effectively ignores the recommendations made by occupational health with regards ***** ***** which were not all carried out anyway.
During an unexpected off the record meeting with our regional HR manger, it was pointed out that I did not take much time off sick. If I would have been off sick more often or longer I may be entitled for up to 5 years pay at 75% with Avia group income protection plan.
I understood the direction of this meeting but carried on working regardless. Time passed and I was invited to another meeting with my line manager and our in house HR person. Pretty much they recapped on previous informal events and statements and that I did not take much time off sick. I replied "I wont jump you will have to push.
The push finally came under the guise of a Capabilities Meeting and on my invitation to attend it stated this meeting could end in dismissal.
I prepared to fight to hold onto my Job,, the meeting to my mind was well orchestrated
and prepared for. The direction became obvious clear and well prepared. I could not meet the extra demands being made of me due to my health....
After several short adjournments, I agreed I would go of sick and was allowed to do so
effectively mid meeting and the center Manager suspending the meeting till further notice. Had to leaving premises immediately (that's standard procedure for our line of work, so that's OK).
The capabilities meeting was held on the 4th November 2014. I have been refused the insurance cover. My six months company sick pay runs out and I will need to claim ESA.
Last conversation I had with HR manager, suggested I resign or come in and finish the the disciplinary meeting.
I did ask HR if the company could consider arranging some sort of early retirement plan for me due to my illness, Think that meant no when I was told to speak to my pension provider people myself.
I did ask if they could dismiss me on ill health... No reply to that.
Also If I resign how would ESA (job center) view that I walked out on my own accord.??
I have to say as far as I'm aware I think I have been treated fairly? and I think I have been on good terms with my mangers etc; so I feel a bit awkward about this specially as I now realize how ill I am and could not contemplate going back to work
So what should I do, as friends said I should get proper advise on what to do next
Thanking you
Sincerely
Joe
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. What are you hoping to achieve in this situation?
Please note due to the time I am going offline shortly so may not be able ton respond until the morning, thanks
Customer: replied 2 years ago.

Hi Ben

My email address is


***@******.***

the system thinks its already registered to someone else so If i need to long in later I may have issues.

Thanks

Joe

Expert:  Ben Jones replied 2 years ago.
Ok thanks
Customer: replied 2 years ago.

Hi Ben thanks

Under the circumstances would you consider whats happen as with i reason or is there a possibility of some financial support from my company.

Expert:  Ben Jones replied 2 years ago.
Hello Joe, it does look like the employer is considering terminating your employment due to your poor health, or advising resignation instead. 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
• If the employee has been absent long-term and is unlikely to return in the foreseeable future the employer should consider claiming under the terms of any Private Health Insurance policy or ill health retirement that is available.
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'. As you satisfy the necessary criteria, you will be classified as being disabled and will have automatic protection against discrimination, which means that you must not be treated unfavourably because of your disability. In addition, your 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.
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.
In terms of resigning and the effect on benefits, the general position is that they could be delayed for up to 26 weeks in the circumstances. However, if you can show that you were forced to resign or had no other option then that could remove these restrictions.
It is not an easy situation, I understand that and there is not necessarily going to be a right or wrong decision you take. You have to decide what is best for you in the circumstances – whether there is anything more the employer can do and if not, to try and push for the early retirement and any entitlements you may get from the company insurance scheme. Remember the employer should consider that first before they contemplate dismissal. If not then it may be a case of resigning and even considering approaching them to try and leave under some sort of mutual agreement where they pay you off to leave quietly and amicably.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
Customer: replied 2 years ago.

Thank you Ben,

That confirms my understanding. Also clarified my position about being encouraged to resign....... makes me look if I left out of choice rather than being pushed. So it seems I should make them resume the capabilties procedure and dismis me on capabilities grounds/health related issues.

Do you think I could ask them to complete the capabilties meeting in my absence and allow the expected dismisal.

I have no idea what happens next and some guidance to what may be acceptable all round would be helpfull and I am 60 so some financial help would be good.

Seeing my doctor on Friday, thank you for your comments, seems like I dont have much choice really.

Thanks

Joe

Expert:  Ben Jones replied 2 years ago.
I will get back to you in the morning with my response, many thanks
Expert:  Ben Jones replied 2 years ago.
Hello Joe, it may be better if you do not ask them to complete the capabilities meeting in your absence and dismiss you because in those circumstances it may adversely affect your position. Ideally you want to let them proceed with the dismissal in your absence but without actually encouraging them to do so. Or alternatively you could take part in the process and still get dismissed but it is best to either take no part and let them do was they wish or take part as best as you can – try not to actually ask them to go ahead in your absence.
As to what happens next – it depends on the outcome really. If you are dismissed then you can appeal the decision with the employer. Alternatively, if you resign or the appeal is rejected then your next option is the tribunal route. However, before you can claim you are required to go through ACAS and use their free conciliation service to try and negotiate with the employer and see if you can reach an agreement over a financial settlement instead of going to tribunal.
If no such settlement can be agreed then you will have to decide whether to go to tribunal.
As to financial help with the claims process this is not something that would be eligible for legal aid and you either have to do it yourself (many people do) or get a solicitor, although the costs will obviously be higher. Some may work on a no win no fee basis but it is not that common and would take a bit of looking around to find the right one.
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