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Hello, my name is ***** ***** it is my pleasure to assist you with your question today.
Realistically, are there any jobs he could do which will not have any serious adverse effect on his health? Can doctors certify that?
Hi Ben thank you
Basically he is a photographer, national press. His ability to drive longer distances is affected, he has to be near a major hospital at all times, he cannot carry his camera gear anymore, and can only walk 200 yards. So really the answer is no
also stress is a trigger, which cannot be controlled and he may encounter at any time and on a regular basis
Doctors have already said that carrying out his normal duties would have a severe adverse effect. Even on much lighter duties, doing the easiest jobs possible he had another episode that almost killed the guy
Ben are you still here??
yes I am, let me get my response ready please
no problem at all, I was only advising you so you knew where I was disappearing off to
I will respond shortly, you can wait here if you want
ok will do
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:
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'. If a person satisfies the relevant 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. However, in the present circumstances it would appear that there is a serious effect of doing any work and that it is unlikely to be resolved by giving him other duties. Maybe if you found him a mundane office-based position it could be the answer but if that is not possible or he rejects it then he could eventually be dismissed on grounds of capability.
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
Yes thats great and very detailed. I am his line manger and he is a nice guy with 4 kids but seems hell bent on killing himself. I am terrified every time I send him on any job. Which really can't be right in itself
I agree - there is a limit and if medical evidence suggests that he is at constant risk an that no measures can be taken to reduce such risks then you can consider the dismissal route, even if it is not what you want to do
you are welcome