Good morning and my sincere apologies slight delay, I experienced some temporary connection issues last night and could not return to the site. All seems to be resolved now so I can continue with my advice.
Capability, where an employee is unable to perform their job due to ill health, is a potentially fair reasons 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 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. However, if they can show that they have made reasonable attempts to find you alternative employment in the company and none actually exists then they can terminate your employment fairly without having to pay any compensation and all they would have to give you is your notice period as per contract.
If you disagree with any of the above and believe the employer has not followed a fair procedure 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 dismissal in the employment tribunal (subject to having at least 2 years' continuous service).
Hope this clarifies your position? If you could please let me know that would be great, thank you
what are they actually using as a reason not being able to return offshore, what is their concern with your condition?
ok so their behaviour so far is unfair. As mentioned above they must investigate the situation first before they act, they cannot just assume things, so at this stage you are entirely within your right to take the first step, which is to raise a grievance
Please let me know if this has answered your original question or if you need me to clarify anything else in relation to this? Thanks
I hope so too and that this has given you some ammunition in case you need to take it further