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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46743
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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Need to get some advice, my mum has been off work for

Customer Question

Hi,
Need to get some advice, my mum has been off work for a while due to a leg injury and wants to know if the workplace should be giving her early redundancy. Do you have a number we could call on or to get further advice.
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. Are redundancies actually taking place?
Expert:  Ben Jones replied 1 year ago.
Hello, not sure if you saw my initial query above - Are redundancies actually taking place in her workplace?
Customer: replied 1 year ago.
No redundancies.
Expert:  Ben Jones replied 1 year ago.
There is no requirement on the employer to make someone redundant if there are no redundancies taking place. Just because someone is off on long term sick leave and unable to return to work does not equal redundancy. The employer could legally consider terminating her employment on grounds of capability by arguing that she is no longer capable of performing her job. 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 illnessWas the employee consulted over their position and did the employer try to ascertain the true medical positionWhat was the likelihood of the employee returning to work or the illness reoccurring in the futureThe effect a prolonged absence would have on the business and the workforceThe 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. It is also important to consider the additional rights someone would have if the condition that is affecting them amounts to a 'disability'. This can have a broad meaning and there is no single list of conditions that amount to a disability under law. Instead, to establish whether a person is disabled, they need to show they satisfy the legal definition of ‘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. 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. So if she cannot perform her job and the employer has considered all alternatives and there is nothing else she could do, they could eventually decide to dismiss her on grounds of capability. She would not be due any redundancy as this is not a redundancy situation. She would however be entitled to receive her contractual notice period and any holidays she is still due. I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46743
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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