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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 48537
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I am a care manager that has been working same agency

Customer Question

I am a care manager that has been working for the same agency for 3.5 yrs. over the last 18 months I have started having seizures (5 all together3 in the last 3 months) I have been diagnosed as having epilepsy and seeing a consultant and taking medication daily to try and control these seizures.
I only have these seizures at work and never had any away from work.
I had 2 seizures in the last 2 weeks and returned to work on Monday. After an 8 hour shift the registered manager/ owner called me in for a return to work. She said that she felt that I was not well enough to be back at work and would like me to go home and get some rest for a bit. I asked how long for she said she didn't know but as she was sending me home she would continue to pay me. I have now received a letter explaining that I am suspended and asking for me to give permission for my employer to have access to my medical records.
The question I would like answering is, is she allowed to suspend me on medical grounds in that way. Does she have rights to ask for my medical records and if I deny can she dismiss me. Should she not have started looking into this after the first seizure instead of waiting until the fifth
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Are you actually an agency worker rather than a permanent employee?
Customer: replied 2 years ago.
I am a permanent worker who has a 40 hr a week contract
Expert:  Ben Jones replied 2 years ago.
Medical suspension is something an employer could do but not something they should use as an initial response. It is generally used as a last resort where an employer has tried to deal with the situation but no resolution is possible and it is becoming unsafe for the employer to continue being in work. Therefore the employer would suspend them rather than expose them to any further risks in the workplace.
In terms of your legal rights you could be classified as being disabled in law. 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.
So this is what the employer should have been looking at instead of just jumping for suspension straight away, although if there is an immediate risk and you need to be removed from the workplace as a result then it could happen straight away.
As to a potential dismissal, 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.
You should be cooperative and provide medical information or reports as necessary to allow them to determine what adjustments you may need and the seriousness of your condition. Refusing to do so would see you as being uncooperative and could affect your rights if a decision is made when they only had limited information about you.
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.
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.
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 and/or pursue a claim for disability discrimination.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
Expert:  Ben Jones replied 2 years ago.

Hello, I see you have read my response to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? If your query has been dealt with please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. If you need further help please get back to me on here and I will assist as best as I can. Thank you.