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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I have worked for the fire Service for 17 years. Following

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I have worked for the fire Service for 17 years. Following a knee injury (medial ligament and cartilage) at work in August 2012 whilst responding to an emergency. Depsite my best attempts i could not regain full fitness. I have was deemed to have an incapacity for my role by an Independent medical practitioner. My requests for a an alternative suitable role to be found for me within the authority were rebuffed due to the acute financial issues faced by the authority. My request for Vol redundancy were rebuffed as they could not make my role redundant. i was not eligible for being pensioned off on medical grounds and following that decision I was told that i would be dismissed on grounds of incapacity for my role. I will be attending a dismissal meeting on June 12th. The grounds for the dismissal have been changed to 'Some other substantial reason' -not clear exactly what this reason is? - but i understand there is no agreed incapacity proc with the employer and the FBU? Despite the assurance of the employer I do not feel that i have been treated fairly and i wonder if i might qualify as disabled under the 2010 equalities act? Since injuring my knee i have been on light duties in other roles although more recently i have been off work with stress related issues. I no longer wish to save my job as I have become disillusioned with the FS however I wonder if i might have a case for unfair dismissal ? Any advice would be much appreciated - David
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.

 

Ben Jones :

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

Ben Jones :

What do you believe the employer could have done better in this situation?

<span class="JA_chatAuthorName"Customer:

they have not provided any real evidence that they have looked seriously at potentially modifying my previous role to enable me to continue.

<span class="JA_chatAuthorName"Customer:

I have also heard about a case law jelic v South York police ? i understand this obligated the employer to place a employee in an alternative role i.e. make a job for the employee potentially on same t & c's. The employer has not offered any such alternative and says that they are unable to due to cut backs.

Ben Jones :

Were such changes and adjustments actually possible?

<span class="JA_chatAuthorName"Customer:

they say not but i wonder if they actually looked into it at all? tbh i think it was unlikely but I am not an expert on the technical issues. they were certainly unwilling to change the structure of the unit (i worked on rescue boats) to incorporate me in a different role.

Ben Jones :

ok let me get my response ready please

Ben Jones :

First of all you need to establish whether you are disabled. In the legal sense of the word, disability can have a broad meaning and there is no single list of medical conditions that qualify. Instead, to establish whether a person is disabled, they need to show that they meet the legal definition of a ‘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.

 

What amounts to ‘reasonable adjustments’ can have a wide interpretation and often depends on the individual circumstances. Below are some examples:

  • 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.

 

The case of Jelic was to do with making reasonable adjustments and the tribunal held that swapping a disabled employee's role with that of a non-disabled employee was a reasonable adjustment, even where the non-disabled employee was happy doing his job. But the issue is that every case is fact-specific and that does not mean that if an adjustment has been given as an example of being reasonable in the past that it would definitely and unconditionally be one in your case too.

 

Generally, 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.

 

If the dismissal goes ahead you only have two options – one is to appeal to the employer first and after that you are looking at the tribunal claim for unfair dismissal and/or disability discrimination. It is now a requirement that you must try and mediate with the employer through ACAS before you make a claim so you could still end up settling with them without having to make a full claim.

<span class="JA_chatAuthorName"Customer:

a job swap was possible last year as there was a person who was willing to do this but the employer did not offer this. They did not make any attempts to advertise such a proposal either.

Ben Jones :

That would obviously be relevant and will form part of your argument if you were to take this further, but as far as your rights are concerned they are as detailed above including the steps you need to take if this results in dismissal

<span class="JA_chatAuthorName"Customer:

thanks for your help

Ben Jones :

you are most welcome

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