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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 48771
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I am a teacher and sustained an injury at work (sequestrated

Customer Question

I am a teacher and sustained an injury at work (sequestrated disc after a pupil ran into me, this was December 2009) I receive industrial injuries pension and have been assessed as 20% disabled. I have continued to work at the school. The school today have told me that they wish to terminate my employment as the risk of further injury to myself is too great.
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.

Ben Jones :

Have any further incidents occurred since the original injury?

Customer:

no,

Customer:

I was risk assessed in January 2014 we are going through BSF

Customer:

I have continually struggled to get the school to make reasonable adjustments as per occupational health reports recommendations

Customer:

they state that i should be in a downstairs classroom near a toilet and near a fire exit.

Customer:

the school want me to use the lift and be in an upstairs classroom the classroom is a long way from the lift and i would struggle to walk. so I have brought myselg a light mobility scooter for use around school, this resulted in a detailed risk assessment

Ben Jones :

why have they failed to make the adjustments?

Customer:

incompetent

Customer:

they sent me for 9 occupational health reviews in 3 years

Customer:

always the same report need to be located in a room on the ground floor near a toilet and fire exit, and not to be on the corridor the same time as the students, as of 2015 they want me to be upstairs as the departments will be located in faculties and another subject has been allocated the ground floor rooms

Ben Jones :

ok let me get y response ready please

Ben Jones :

Capability, where the employer believes 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'. 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.


 


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.

Customer:

i am covered by disability legislation, they have produced a risk assessment and basically i am too high a risk to now employ (I am at present medically suspended because I am disabled and was called in a meeting and told they wish to terminate my employment) they say the likely hood of me suffering further injury is too high, even though I have been working fulltime for the past three years.

Customer:

I am fit to teach , i want to teach

Ben Jones :

yes I understand and there are obviously concerns about the employer's actions but if they are intent on proceeding with this they cannot be stopped, hence why you need to concentrate on any appeal first and then on a potential claim as discussed above

Customer:

ok thank you very much

Customer:

my union is on to it will probably go to a tribunal

Ben Jones :

use the union as much as possible, that is what they are thee for and you pay fees for

Customer:

thanks for your excellent service

Ben Jones and other Law Specialists are ready to help you
Customer: replied 3 years ago.

thanks,


I rated you as excellent,


I lost the Governors appeal which was expected. ACAS have issued a certificate for it to go to tribunal, I am just waiting to hear from the union solicitors which should be any day soon.


thanks


Also I have got another teaching job this school will be happy to make the adjustments and have even offered to put a disabled parking spot right outside my classroom.


Liz

Expert:  Ben Jones replied 3 years ago.
Hi Liz, many thanks for the update and glad things are getting sorted