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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46803
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have one employee who is on sick leave due to his diabetis

Customer Question

Hi i have one employee who is on sick leave due to his diabetis he has now had to have is big toe cut off.I no that i am required to pay ssp for 28 weeks but what do i do after this period i feel he wont be able to carry on working for me as we do heavy manual work on site and on uneven ground.He has been a good employee to me but i am a sole trader and work isnt to good can someone advice me of my rights and his
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. Please can you just confirm whether you are looking for Scots law? Thank you.
Customer: replied 1 year ago.
hi yes we are in scotland i would like to help my employee as much as i can but am a small companyso need to no what the law says to keep me right thank you
Expert:  Ben Jones replied 1 year ago.
OK thank you for confirming this. I will go ahead and opt out so that another expert can assist you with your question. Thank you
Expert:  Ben Jones replied 1 year ago.
Sorry got confused with another question, i can help with this one as employment law is the same in Scotland and England leave it with me please and i will respond later today thanks
Expert:  Ben Jones replied 1 year ago.
Many thanks for your patience. If needed you could consider dismissal because 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.So if you believe that they are no longer capable of performing their hob, even if you made changes to their working environment, and that there was no other suitable work for them, then a dismissal is possible on grounds of capability. This is your basic legal position. I have more detailed advice for you in terms of the factors a court would look at to decide if such a dismissal os fair and also what you must pay the employee if you do dismiss, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46803
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
Hi Ben thank you for your help if you can advice me on what i need to do after the 26 week ssp has ended as i think its only fair to wait this lenght of time to see how my employee recovers do i need to offer him a light duty job or make special exceptition if he is now disabilted as i am only a one man company i need to have someone who can do his job 100% and most of all safely
Expert:  Ben Jones replied 1 year ago.
Thank you. When looking at the reasonableness of a capability dismissal, a 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.
Customer: replied 1 year ago.
Ok can you advice me what reasonable adjustments would be i feel as if am between a rock and a hard place and just dont no which way to turn
Expert:  Ben Jones replied 1 year ago.
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.
Customer: replied 1 year ago.
Hi thank you so all these things would happen after his 28 week period of illness my employee is thinking of claiming disabily allowance if dwp say he is un fit to work how will this effect me no more questions after this one i promise thanks for your help
Expert:  Ben Jones replied 1 year ago.
these things need to happen as soon as the issues have been identified, so you need to try and help him as soon as you can but obviously if he cannot return to work even with the adjustments in place there is not much you can do. Him getting disability allowance should not affect you, it is a Government benefit.

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