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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50178
Experience:  Qualified Employment Solicitor
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Having worked 20 years as a cardiac sonograher, I

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Having worked for over 20 years as a cardiac sonograher, I have sustained a significant musculoskeletal neck problem which has been partially attributed to scanning ( of which my employer has agreed on). I am now going to be dismissed on ill health. Do you think my employer should take some responsibility and, rather than be dismissed on ill health, would it be possible to come to some sort of a severance agreement.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. can you tell me has your employer stated in writing or email some responsibility due to the scanning that has attributed to your neck problem please.


In a report from the Occ. Health consultant it states " Claire's scanning role would have put her more at risk of upper limb problems than other jobs but the neck wear and tear could not be wholly attributed to work"


In a subsequent meeting with HR rep, it has been recorded that my manager said " you know you cannot return to echo"

Ben Jones :

OK thank you, ***** ***** it with me. I am in a tribunal today so will prepare my advice during the day and get back to you this evening. There is no need to wait and you will receive an email when I have responded. Thank you.


I replied yes, and that is partially attributed to my job"


Her reply was " I know, I appreciate that"


Thank you


Just checked my e mails but don't seem to have had a reply yet.

Ben Jones :

Hi, sorry I tried to reply earlier but had issues accessing the site. I will first explain the law on dismissals in such situations.

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.

Now even if the job you did could have attributed to your illness, it does not mean that the employer cannot dismiss you as per the information above. What the law looks like is if you are able to do the job or not and what the employer could have done to try and avoid a dismissal. The reasons behind why you found yourself in that situation will not change your rights on dismissal. What it does mean however is that you could potentially look at a personal injury claim against the employer, or try to negotiate a settlement with them when they are aware that you may be looking at that route. However, not one can force them t agree a settlement so you have nothing to lose by trying to negotiate it but if they refuse to agree on one then you will have to look at the possible personal injury avenue.

I hope this clarifies your position? If you could please quickly let me know that would be great, as it is important for us to keep track of customer satisfaction. Thank you


Thanks for the input. I had researched employment law and disability quite a bit. Difficult though when you're a novice!! At least I know I can possibly negotiate a settlement. Although we are talking about the NHS. However, their lack of following protocols and policies leaves a lot to be desired!


I'm trying to rate you but it keeps saying you haven't finished answering!!??

Ben Jones :

Hi, I agree that the way they have handled this is not acceptable and I have seen the NHS deal with other issues in a similar manner - whether it is lack of resources, the sheer size of the operation or another reason I am not sure but it does not change your rights in any way so you should still pursue them for the things they have done wrong

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