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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50138
Experience:  Qualified Employment Solicitor
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I have worked for the same company for 13 years. At the beginning

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I have worked for the same company for 13 years. At the beginning of the year in a freak accident I was left with a prolapsed disc in my neck. I have received and continue to receive treatment as I can't type for more than 15 mins and have pain generating from my shoulders which travels up to my eye sockets. It has now been 9 months since I have worked which frustrates me beyond words. As 95% of my work is typing and I am not a touch typist and the most painful positions are looking up and down, I still don't know when I will be able to return. Work have suggested, if agreed with my Dr that I return for a few hours a day in a different role. Please would you advise me on a) upon return for however many hours worked, normal pay would resume b) what happens if I cannot return to my full time permanent position. Thank you.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today.

Ben Jones :

Are there any other positions the employer can offer you to help you with getting back to work?

Customer: Not exactly. They would be opening a position to suit me and get me back to work for a few hours a day but this position would not be indefinite. My position is EA to MD and this would be totally different although still admin based.
Customer: Hi Ben, are you still online?
Ben Jones :

If you return to work but you are unable to do the usual hours which you did before going off sick the employer does not have to pay you your normal pay for the full amount of hours you used to do. They are obviously not getting the same level of work from you and even though that may not be your fault, it is not theirs either so they can only pay you for the actual hours you do, or reduce your pay in proportion to match that. There is an argument that for a limited period of time they should pay you as normal because they will be making ‘reasonable adjustments’ by allowing you a phased return to work but that will only last for so long, even though no specific term is mentioned anywhere in law. It could be a few weeks or a month or so.

If you cannot return to your old position then the employer could eventually consider dismissal. That is because 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.

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.

Customer: would a compromise agreement also be considered in such a case?
Ben Jones :

you can certainly suggest it but you cannot force the employer to agree to it

Customer: Thanks for your help Ben.
Ben Jones :

you are most welcome, all the best

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