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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49789
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I am currently off work since and have been since September

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I am currently off work since and have been since September 2014. My work absence policy states that they can decide to dismiss me on grounds of ill health - can they do this? My condition comes under the DDA. Do they have to give me a redundancy payment?
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. I presume there are no prospects of you returning to work?
Customer: replied 2 years ago.
Not in the near future. The occupational health Dr that work have sent me to several times has in his most recent report stated that he can't see me going back in the next 3-6 months. Since being off work I have been diagnosed with osteoarthritis brought on by the drugs I'm on for the condition I'm off work with. This means that I currently could not do my job as it involves a lot of typing and the arthritis is in my hands and other joints.
Are there any other jobs you could with them instead?
Customer: replied 2 years ago.
No not really they are all computer based
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 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 if a fair procedure has been followed, the dismissal could be deemed fair and as it is not a redundancy situation no redundancy would be payable. I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. 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.
Does it make any difference that they knew of my condition and got an occupational health report before employing me?
Not really, eventually if someone is on long term sick and returning to work is a distant prospect, anyone can be dismissed subject to a fair procedure being followed
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 2 years ago.
Thank you
you are welcome