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?
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
I have an exemplary record to date and all Performance Management meetings to date have been good and I was awarded pay increases
I cannot find a post from Ben
I have not provided one yet, I need to get my response ready first
No problem, I won't be long
Just to clarify are they seeking to dismiss for poor performance or due to illness?
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
if I went back into school now apparently they would suspend me then sack me. Just how they can do that Im not sure
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:
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:
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.
Thank you very much Ben. That information has helped a lot. Take care, Best wishes, Yvonne
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Lovely, thank you. take care