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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50208
Experience:  Qualified Employment Solicitor
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An employee has been off work since May 2014 with an Ependymoma

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An employee has been off work since May 2014 with an Ependymoma of the spinal cord. It has been removed however the wound has to be packed and dressed everyday and currently shows no positive signs of healing. The employee joined us in July 2010 however when he went off sick in 2014 his entitlement to CSP expired in August 2014 followed by his SSP in December the same year. To date I have struggled since March to obtain a report from his Dr. After a game of cat and mouse I have finally received a report which states that he is still having further treatment and if he was able to return at any point he may be restricted to what he may or may not able to do. He is employed as a Logistics Operative so much of his work is physical labour. I am writing today to ask him to attend a meeting to discuss the medical report and basically put it to him if he thinks he will be able to return to work.
If he advises that he can't and we have no suitable alternative to offer him at the moment can we terminate on the grounds of ill health and pay him notice etc ?
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. Do you intend to make any offer of alternative work?
Customer: replied 2 years ago.

At present we do not have any alternative work that he could carry out that doesn't include physical labour.

Thank you. Please leave this with me, I am mobile for most of today so it may be difficult to provide a full response straight away but I will get my advice ready and get back to you on here as soon as I can, certainly no later than tomorrow morning. Thanks for your patience.
Many thanks for your patience. 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. So in summary, if you have 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. However, if it is clear they may not be able to return to their original job, there is no alternative work for them to do and it means they cannot return to work in any capacity, then you could indeed consider terminating their employment on grounds of ill health. You must still pay them their notice period and any accrued holidays. 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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