Ben Jones : , my name is ***** ***** it is my pleasure to assist you with your question today. Do you agree thee are no other alternative positions with the company?
Customer: Thanks . I just think that it's strange that such a big company which has rigs and offices all over the world cannot cater because I am diabetic! When I hear that there are people with diabetes working offshore companies. to tell me they are struggling to find me a position and that they feel they have no obligation to " pay me off " seems strange to me, as I have been with them years. Being only 30 yrs old and a good career ahead of me it's very disappointing
Ben Jones :
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:
- 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 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
Customer: Thanks advice but (myself) who is fit and active and still capable of doing any job onboard the rig to be told I cannot return just because I have to take a couple of injections throughout the day is unbelievable, my fitness, capabilities have not changed at all. Surely this is discrimination
Ben Jones :
what are they actually using as a reason not being able to return offshore, what is their concern with your condition?
Customer: They are just saying because I am diabetic that is the reason! They haven't once asked to look at my medical records, if they did they would see that it is totally under control, my doctor and the diabetic nurse have both said I am fit to return to work
Ben Jones :
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
Ben Jones :
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
Customer: I think I will be raising a grievance with them about this because it all seems unfair from my point of view, they are having a meeting this week and hoping to come up with answers . Thanks help I really appreciate it. Fingers crossed I can get back to work soon.
Ben Jones :
I hope so too and that this has given you some ammunition in case you need to take it further