Whilst the employer is talking about sickness policy this is really a capability issue because you are no longer capable of performing your role. This could allow the employer to remove you from the workplace and in more serious circumstances, even dismiss you, but I will explain the legal protection you have in this case and what could be expected of the employer.
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:
· 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 if they are really considering removing you, then on the basis that your absence will not be indefinite and that you will have a licence and be able to do a wider variety of jobs very soon means that they should at the very least allow you to return to work then and see what options are there for you. In the meantime, they can only offer you work which is available – they do not have to create any jobs for you to be able to fir you into doing other duties but if there are suitable jobs which you can do then these should be considered and you should be allowed back to work, considering the limitations you currently have.
If they are intentionally not allowing you to return to work, even though here could be opportunities for you there, then that could be unfair treatment.
This is your basic legal position. I have more detailed advice for you in terms of the options you have to challenge this further if needed, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you