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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 47341
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I have been dismissed due my current mental health problems.

Resolved Question:

I have been dismissed due my current mental health problems. I been suffering from depression for some years and due the break down of my marrage, financial problems i struggled to cope with the heavy work load. I was in a sever distressed state when i had to leave a meeting which was called without warning. Before this i asked for help but the director did not respond.
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.

Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. How long did you work there for and when were you dismissed?

Customer: replied 1 year ago.
I joined the company at the beginning of October 2014. I left on friday 27th May 2016 since then the company offered 2 months work but would not pay me for and time off to attend doctors appointments required due to my illness. I have always been paid sick and for doctors appointments. Additionally i have always made the time up on these occasions.
Expert:  Ben Jones replied 1 year ago.

Hi there, thanks for your patience. Whilst you are not protected automatically against unfair dismissal because you do job have 2 years service,, you will get protection against disability discrimination, including an unjustified dismissal due to a disability.

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.

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’.

This is your basic legal position. I have more detailed advice for you in terms of the ways to establish if you a disabled and also how to challenge the dismissal now, 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

Expert:  Ben Jones replied 1 year ago.

Hello, I see you have read my response to your query. Please let me know if this has answered your original question and if you need me to discuss the next steps in more detail? In the meantime please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. The question will not close and I can continue with my advice as discussed. Thank you

Ben Jones and other Law Specialists are ready to help you
Customer: replied 1 year ago.
Thank for your help I'm not really sure what to do next. You must understand that the directors could not lay straight in bed. I don't think i would have a case once they start coving their backs..
Expert:  Ben Jones replied 1 year ago.

A new feature in the employment tribunal’s claims process is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible for the parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal.

If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return for the agreed financial settlement.

The conciliation procedure and the form to fill in can be found here:

https://ec.acas.org.uk/Submission/SingleClaimantPage

In terms of the time limits within which a claim must be presented, the early conciliation process places a ‘stop’ on that and the time between notifying ACAS and them issuing permission to proceed with the claim would not count for the purposes of these time limits.