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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Can i still make an accident claim even though my accident

Resolved Question:

Can i still make an accident claim even though my accident at work was in 2007? i am still having treatment for my injury. I have now been dismissed from my job through this injury.. they call it dismissed through medical capability. Thank you Jacky
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. When were you dismissed?
Customer: replied 1 year ago.

last month (july). have been off work since April 24th year.. had major surgery on right ankle..still not right. going to see surgeon and consultant again on 18th sept.. have worked for this company since 2005.

Expert:  Ben Jones replied 1 year ago.
The law requires you to make a claim for personal injury within 3 years of the accident happening so if it took place in 2007 then unfortunately you are too late to claim now. The fact you are still suffering or having treatment does not change anything unfortunately as the time starts from the date thaw accident took place.
In terms of the dismissal, 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.
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).
I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45363
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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