Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. Do you have a contract which states what your working hours are and what is the reason for their reduction?
Please note due to the late hour I am just about to go offline but will pick this up again in the morning, thanks
Good morning, if an employee has been continuously employed with their employer for at least 2 years they will be protected against unfair dismissal. This means that to fairly dismiss them their employer has to show that there was a potentially fair reason for dismissal and that a fair dismissal procedure was followed.
According to the Employment Rights Act 1996 there are five separate reasons that an employer could use to show that a dismissal was fair: conduct, capability, redundancy, illegality or some other substantial reason (SOSR). The employer will not only need to show that the dismissal was for one of those reasons, but also justify that it was appropriate and reasonable to use in the circumstances. In addition, they need to ensure that a fair dismissal procedure was followed and this would depend on which of the above reasons they used to dismiss.
If he I trying to argue that capability is the reason because you cannot do your job due to your medical condition then that is going to have to be justified.
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 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 on challenging this, 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
Thank you. So whilst you are still working there you can challenge this through a formal grievance at any time and make it clear that you believe this is discrimination on grounds of disability and age and that if a dismissal was on the cards – a potentially unfair dismissal too. You can appeal the outcome of a grievance if you are unhappy with it.
If the employer proceeds with the dismissal anyway you can appeal that with them as well. If that appeal is rejected then you only have one option left, which is to consider going to the employment tribunal to challenge them, which you must d within 3 months of the date of 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:
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.
do not just accept what he is trying to enforce - if he wants to remove you he can regardless of how lawful it i, but if he does so unfairly and against your legal rights then you will be able to challenge it as stated above