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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50143
Experience:  Qualified Employment Solicitor
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I have been working employer years. I have been

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I have been working for my employer for 9 years. I have been off work since 29//10/14. I suffer from low back pain, disc problems and depression. I have medical certificates and doctors reports verifying my conditions. My employer has paid me SSP for 28 weeks and has issued me with form SSP1 so that I can claim benefits. I attended a welfare meeting at which some problems arose; I emailed HR with my unhappiness with the structure, deliberations and outcome of the meeting. HR has now invited me to attend a final welfare meeting “to discuss our decisions in light of our meetings and the medical report” The letter of invite says “Please be advised that a potential outcome of this meeting could be your dismissal from the company on the grounds of incapacity”. I am unsure of my rights, this employment issue is causing me extreme anxiety and I am struggling to deal with this on my own. I have postponed the meeting until 22nd July and I really would appreciate some advice on this matter.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Is it likely you will return to work any time soon and is there anything the employer could do to assist with that?
Customer: replied 2 years ago.

At my employers request I attended an occupational health assessment. The outcome of this was their doctor advising my employer that I am very keen to return to work and to consider a phased return, altering my hours from 24 to 16. As I'm on high medication which can make me very drowsy at times, their doctor also advised that I couldn't be expected to drive 30mins each way. My employer has sister companies which are nearer to my home than HQ, their doctor says I could return to work if the company made these adjustment. However, he also states I could be off work again within the next year as I'm on a waiting list for spinal surgery but as yet have no date.

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. What amounts to ‘reasonable adjustments’ can have a wide interpretation and often depends on the individual circumstances of the employer, their business, the potential impact on other employees, the available resources, etc. Whilst legislation does not currently provide specific examples of what adjustments can be made, the following are examples that have been considered reasonable in case law over time:making adjustments to work premises;allocating some of the employee’s duties to others;transferring the employee to fill an existing suitable vacancy;altering the employee’s hours of work;allowing the employee to be absent during working hours for rehabilitation, assessment or treatment connected to their disability;acquiring or modifying specialist equipment;providing supervision or other support. 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. I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
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Customer: replied 2 years ago.

Hi Ben,

As this is a free 7 day trial and you have answered my question. I would now like to cancel my membership. Can you please ensure and confirm by email that no fees are taken from my account ending …1008.


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