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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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My current employer, is terminating my contract of

Customer Question

My current employer, is terminating my contract of employment, on Medical Capability. I have been employed with them for 27 years in full-time permanent employment. I am 54 years of age, 55, in April.
My employment is semi-skilled - 'Heavy Gang' (Overhead Crane Operator). Due to Mental Health (Anxiety - Depression) issues, I requested redeployment. In March 2016, I required a Knee Arthiscopy procedure and was in convalescence, for 7 weeks. When I returned to work,my work efficiency was scored as 30% and the company doctor placed restrictions, within my duties Bending, Kneeling and Crouching.
These restrictions applied up until approximately 5 weeks ago. I was entered into the company Work Compatability Procedure, from Monday August 8th 2016. As I submitted by letter my request to be redeployed July 20th 2016 (approximately) and be taken off operating the crane.
Three - Four weeks ago, my manager offered me the only post available,Training to be a 'Bolter'. After less than 24 hours, he requested my response. I declined the opportunity on health grounds, due to the physical nature, this role requires. No other suitable employment, has been identified to help me gaining the minimum efficiency score. So, my employment will be terminated. I have been offered a £8k settlement and deferred pension.
Advice I have been offered from my company Pensions Officer, is to request I be dismissed on Ill Health. My TU Rep, would not follow up my request for this to be put in place.
As you can imagine, a lot is going on in my head and instead of attending work, this afternoon. I have phoned the automated Sickness and Absence Management System, I feel stressed, anxious and nauseous. I'm currently receiving counselling for CBT - Anxiety /Depression, within the workplace.
Please advise.
Submitted: 13 days ago.
Category: Law
Expert:  Ben Jones replied 13 days ago.

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

Expert:  Ben Jones replied 13 days ago.

Why is the union not agreeing to pursue this down the ill health route?

Customer: replied 13 days ago.
I don't have a definitive answer. As a lot going on in my head. I think his response was something like. We have come to the end of the process and you rejected the alternative role
Customer: replied 13 days ago.
I would sooner we continue in this media. As it may help give me more clarity in the written word.
Customer: replied 13 days ago.
Afternoon Ben, would you please respond to the answers, I have supplied.Kind regards
Expert:  Ben Jones replied 13 days ago.

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

· If the employee has been absent long-term and is unlikely to return in the foreseeable future the employer should consider claiming under the terms of any Private Health Insurance policy or ill health retirement that is available.

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.

Please take a second to leave a positive rating for the service so far by selecting 3, 4 or 5 stars. I can continue answering follow up questions and in particular can also discuss he options you have on challenging this if it still results in terminaiton. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can still continue this discussion. Thank you

Expert:  Ben Jones replied 12 days 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 11 days ago.

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

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