How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Ben Jones Your Own Question
Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50202
Experience:  Qualified Employment Solicitor
Type Your Employment Law Question Here...
Ben Jones is online now

My daughter has been off work with stress/anxiety months.

This answer was rated:

My daughter has been off work with stress/anxiety for 6 months. Her employer wants to dismiss her on the grounds of illhealth and says it will be better for her financially. What are the implications? She has never been ill or had absence in any other job and is genuinely struggling in life at present. She is receiving ongoing medical treatment and is trying to manage this as best she can. I feel that this could mpact on her in the future re. employment, etc. Any advice would be appreciated. Thank you.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. How long has she worked there for?
Customer: replied 2 years ago.

Hi Ben,

Thank you for getting back to me. She has worked there from October 2011.

Hello, first of all I will discuss the law regarding such dismissals and how the employer can go about it. 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. If any of the above factors apply she could use them in her favour to try and agree on some sort of settlement from them in exchange for not pursuing things further. In terms of how a dismissal on ill health can affect her in the future, it should not be much of a concern – future employers cannot discriminate against her because of her condition and especially if it amounts to a disability. Otherwise they will themselves be guilty of discrimination. Benefits should not be affected as it was not her fault she left her job and it was due to a medical condition. So it is really a matter of whether she agrees that leaving her job is better for her or not and it would still be best to try and agree some sort of settlement with the employer for her to part ways with them amicable. She can also enquire as to whether there is some sort of insurance policy in place which may pay out in the event of an ill health termination. 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
Customer: replied 2 years ago.

Hi Ben,

Many thanks for sending such a detailed answer. My daughter has decided that she is not going back to the job with that employer in any case. The two options are for her to resign or to be terminated due to ill health. What I am unsure about is whether it would be best for her just to resign and therefore leave amicably or whether she should let them dismiss her. Can you advise one or the other, thinking of her future employability?

Many Thanks, Helen

Hello Helen, it's difficult to say really as every employer is different and they could look at different factors or see. A dismissal worse than resignation and vice versa. Essentially an employer may ask why she resigned but there would be a reasonable explanation for either scenario and that is due to a medical condition which made it impossible to continue in her job. So I would say in the circumstances it should not make much of a difference which way she goes as there are solid reasons to justify either. Hope this helps a bit more?
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 2 years ago.

Many thanks for your detailed answes - much appreciated.