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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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I have worked at Honda . Honda are restructuring the

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I have worked at Honda for 20yrs. Honda are restructuring the business from a single day shift pattern to a rotating two shift pattern.
I am unable to perform a late shift as I take medication for a brain tumour. Which makes me very drowsy. I have been taking this medication for 19yrs.
I moved to a day shift office job shortly after the tumour was found.
The company moved me back to a production role 3yrs ago as it was on a day shift pattern.
The company have told me they have looked in all the other areas of the business but cannot find a role within my capabilities.
Am I entitled to a redundancy package?
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Have you been told that you are facing potential redundancy over this?

Customer: Ben,
Customer: my latest letter is an invitation to a second stage capability meeting.
Customer: the last paragraph reads
Customer: The possible outcome of this meeting could be your dismissal
Ben Jones :

It looks like your employer may be looking at terminating your employment due to capability rather than redundancy. Each is a separate reason for terminating someone’s employment.

So in terms of capability, where an employee is unable to perform their job due to ill health, it 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.

If you are dismissed by reason of capability you would not be entitled to any redundancy as that is not a redundancy dismissal. However, in any negotiations with the employer you could try and look to negotiate some kind of settlement that could include a financial pay off in return for not making a claim against them.

Hope this clarifies your position? If you could please let me know that would be great, thank you

Customer: Thanks for the information.
Customer: Thanks for the information. At no time haveat no time
Customer: thanks for the info. They haven't mentioned the word disability at any time, they keep saying are two typical sentences we have attempted to identify a role for you to perform. We have assessed your capabilities against processes in your current department and in other areas of the business. Unfortunately your restrictions appear to prevent you taking up these roles. As they haven't mentioned the word disability only capability do I need to find out the reason what grounds they would be dismissing ne? I can dostill do the role perfectly well and there are associates who are willing to work a permanent late shift opposite me, the problem is an associate who is in the role at the moment has a restriction of his own so they say he can't be moved. Do I need to find out whether the reason they may terminate my employment is it capability or disability?
Ben Jones :

well capability (or lack of) could be triggered by a disability so the reason for dismissal in law would still be capability although it would be as a result of a disability. Whilst a disabled person can be dismissed on grounds of capability the employer will have to follow the pointers I mentioned above to justify the dismissal as being fair

Ben Jones :

Does this clarify your position?

Customer: Thank you. One final question, do I have to register myself with a 'disability ' to protect myself? I have heard that there is such a thing and can range from dyslexia, autism etc. If this is the case do you know how i pursue this? Thank you.
Ben Jones : You do not actually have to register yourself as disabled to be protected in law. Whether you are disabled depends on meeting the legal definition of a disability as explained above. So you will automatically be regarded as disabled if you meet the criteria and there is no requirement to register it anywhere or get official confirmation.
Customer: F
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