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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45303
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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Hello. I am an Acting Principal at a Residential Special School

Resolved Question:

Hello. I am an Acting Principal at a Residential Special School for secondary aged boys with A Statement of Special Educational Needs that deems them to have Social, Emotional and Behavioural Difficulties. I have been in this post since Sep 2011 but have been employed by the school, in various capacities since April 1996. I have also lived in a house on site since that time.

A recent Ofsted Inspection has judged the school to require Special Measures and it seems that the Governing Body and me are to the 'scapegoats'.

My Chair of Governors has referred to me to Occupational Health to assess whether or not I would qualify for Early Retirement on health grounds (Hip and Back problems) but it seems that the L A wish to pursue this instead of a Compromise Agreement borne out of me loosing my job and home.

Although this is complex I would be grateful if you could give me an idea of what action I should be taking to protect myself please. I am almost 56 years old and it is unlikely that I could earn £72,000 again in my working life time. I have o savings or other property due to marriage breakdown.

I have an unblemished work record and an exemplary sickness record.

I thank you in anticipation of your assistance in this matter.

Yvonne
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. So to clarify - are they seeking to dismiss you on grounds of capability?

Customer:

Hello Ben.Yes although I have been told this second hand by the Chair of Governors who advised me to go sick before this could happen. The NAHT have confirmed that most Principals in my position are quietly advised to do this

Customer:

I have an exemplary record to date and all Performance Management meetings to date have been good and I was awarded pay increases

Customer:

I cannot find a post from Ben

Ben Jones :

I have not provided one yet, I need to get my response ready first

Customer:

Sorry!

Ben Jones :

No problem, I won't be long

Ben Jones :

Just to clarify are they seeking to dismiss for poor performance or due to illness?

Customer:

The CoG suggested that illness may be the best package . I however believe that that option should not be part of a package to get rid of me. Apparently 'compromise packages' are the way Local Authorities move staff like me on. They want to make the school into an Academy so I would be in the way It is complex. Im sorry

Customer:

if I went back into school now apparently they would suspend me then sack me. Just how they can do that Im not sure

Ben Jones :

Ok, well I will explain your rights in the event the employer wants to consider terminating your employment on grounds of capability, which is where an employee is unable to perform their job due to ill health. This 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.


 


As an alternative to dismissal it is possible to negotiate and agree on a settlement agreement where you are effectively paid off to leave quietly and in return you agree not to make any claims against them in the future. It is for you and the employer to negotiate a package that suits you both. If that is not possible and the employer proceeds with a dismissal, then 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:

Thank you very much Ben. That information has helped a lot. Take care, Best wishes, Yvonne

Ben Jones :

You are most welcome. Please take a second to leave a positive rating for the advice I have provided as that is an important part of our process. Thank you and feel free to bookmark my profile for future help:



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Ben Jones :

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Customer:

Lovely, thank you. take care

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45303
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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