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Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Why do you think your employer would terminate your contract?
Hi sorry I was offline by the time you had replied last night and have been in tribunal all day today.
The starting point is that the employer can consider terminating your employment on grounds of capability regardless of whether you have made an application for ill health retirement or not.
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.
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.
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 relation to the option of ill health retirement, here is some relevant case law:
Hope this clarifies your position? If you could please let me know that would be great, thank you
You are unlikely to have such specific case law that deals with specific illnesses, at least not anything that has gone to the higher courts and which would be binding. There may have been cases about CFS in the tribunals and they would not have gone further but these would be unreported and not legally binding on the tribunals should you decide to take your case there.
But the specific condition itself is not important, that is not what determined the success of an application for ill health retirement because even if someone has had that condition in the past, the way it affected them would be unique and you will never be able to find a like for like comparison
In terms of reasonable adjustments, the employer does have a duty to consider making these before they proceed with dismissal or retirement. So if making such adjustments will assist you in retaining your job then they have to do these before they proceed with dismissal
The employer will have to pay for such adjustments and costs in itself will not be a factor to consider if they try and claim that they cannot make such adjustments
Hope this clarifies things for you ?
you are welcome, all the best