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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49806
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have been told by serco management that I cannot do my job

Customer Question

I have been told by serco management that I cannot do my job as a pco due to my recent heart problem I am at the stage of capability which means they are going to try and help find another job I asked them well u cannot find me a job within the company serco then they said they will terminate my contract I have been doing this job for nineteen years I started in 1995 with Securicor..
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today. So what is your working arrangement - do you just work for Serco and they are your employer? Or do you work for them through anther company?

JACUSTOMER-hpmdbzur- :

hi ben I work for serco they are my employers I am a prison custody officer working at the city of London magistrates. In December I was told I had a heart problem and take medication one in which is warfan the managers today told me I cannot come back to doing prison custody officer my next meeting with them will be a capability meeting to see if they can help find another job to suite my condition.. I asked them if they cannot find me a job then they will terminate my contract with them I work a 35 hours week.. I just need to know what I can do thanks linda

Ben Jones :

Hi Linda, sorry I was offline by the time you had replied last night. 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’.

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.

The first step is to formally appeal the dismissal with the employer using the internal appeals procedure. After that all that can be done is to submit a claim for unfair dismissal in the employment tribunal (subject to having at least 2 years' continuous service), and/or pursue a claim for disability discrimination.

Hope this clarifies your position?

JACUSTOMER-hpmdbzur- :

ben can they pension me off , or pay me off .........

Ben Jones :

They could offer you early retirement, or they could try and offer you a settlement agreement perhaps where you are paid off to leave quietly, but they do not have to do hat, they could just continue with the normal dismissal procedure and then if you want to pursue the matter further you will have to claim against them

Ben Jones :

Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? I just need to know whether to close the question or not? Thanks