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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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I have standing epilepsy and my employer knew that when they

Resolved Question:

I have long standing epilepsy and my employer knew that when they employed me. I have since been off long term sick following a car accident that gave me serious injuries and triggered my epilepsy again. I have also been suffering from anxiety and depression but am ready to return to my clinical role within the NHS. I'm told that they have the right to downgrade me to a different post or dismiss me for not fulfilling my contract. Where do I stand?
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Expert:  Ben Jones replied 1 year ago.

How long have you worked there for?

Customer: replied 1 year ago.
As a HCA from 2008 until 2011 then as a qualified practitioner from 2011 to present
Customer: replied 1 year ago.
No previous problems with sickness until the accident in March 2015
Expert:  Ben Jones replied 1 year ago.

Thank you for your response. I will review the relevant information and laws and will get back to you as soon as I can. Please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you

Expert:  Ben Jones replied 1 year ago.

Many thanks for your patience. 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.

As you are likely classified as being disabled, you will also have automatic protection against discrimination, which means that you must not be treated unfavourably because of your disability. In addition, their employer would have a duty to make reasonable adjustments if you 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.

This is your basic legal position. I have more detailed advice for you in terms of the options you have to take this matter further, 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 is 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

Expert:  Ben Jones replied 1 year ago.

Hello, do you need any further assistance or are you happy with the above response? Look forward to hearing from you.

Ben Jones and 3 other Law Specialists are ready to help you
Expert:  Ben Jones replied 1 year ago.

Thank you. In the first instance any issues should be dealt with through a formal internal grievance where you follow the employer’s own grievance procedure. If they demote you then you would be looking at potential constructive dismissal or disability discrimination. You need to resign to claim constructive dismissal but you do not need to do this for discrimination. So you either just claim discrimination on grounds of disability whilst employed there or you resign and claim constructive dismissal and disability discrimination after you leave.

If they end up dismissing you instead then you are going for unfair dismissal and disability discrimination after the dismissal.

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