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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49796
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I'm due to be dismissed from my workplace. I had several

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HiI'm due to be dismissed from my workplace. I had several Occupational Health reports done which said that if dismissal were to occur it would be on "the grounds of ill health". My workplace however have said they will dismiss based on inefficiency due to sickness absence.The sickness absence is work related stress which has worsened an existing disability they already know about. Thus my doctor and OH say I have 2 disabilities now as this has gone on for over 12 months. I've been unable to return as they removed a reasonable adjustment and refused to implement one OH recommended for me to work. I do not qualify for ill health retirement.Are dismissal on the grounds of ill health and dismissal based on inefficiency due to sickness absence the same thing?

Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.

Please can you tell me how long have you worked there for?

Customer: replied 1 year ago.
16 years now. Thanks.

OK, thank you for your response. I will review the relevant information and laws and will get back to you as soon as I can. Please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you

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. So yes, in both cases the dismissal could fall under the ground of capability.

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.

This is your basic legal position. I have more detailed advice for you in terms of the options you have should the dismissal go ahead, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Ben Jones and other Employment Law Specialists are ready to help you

Thank you. 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.

A new feature in the employment tribunal’s claims process is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible for the parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal.

If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return for the agreed financial settlement.

The conciliation procedure and the form to fill in can be found here:

In terms of the time limits within which a claim must be presented, the early conciliation process places a ‘stop’ on that and the time between notifying ACAS and them issuing permission to proceed with the claim would not count for the purposes of these time limits.

Customer: replied 1 year ago.
Thank you for explaining that. Are the two types of dismissal which have been described to me the same? (i.e: Is dismissal on the grounds of ill health the same as being dismissed for inefficiency due to sickness absence?)It is unfortunately likely that it will go ahead as my employer will not implement the adjustments which have been recommended despite them costing nothing. In addition, they won't take into account further potential medical evidence which OH have offered to undertake and some I already have. The return to work options my GP, Specialist and OH have all agreed are not viable due to my disabilities. This is why I have been told I am facing dismissal.

Hi yes as mentioned they can fall under the same type of dismissal, that being capability, the rest of your rights and options on appealing this are mentioned above

Customer: replied 1 year ago.
Thank you for your quick reply. There has been a mention of a compensation/severance payment being made to myself but nothing set in stone. This is likely as in my grievance and appeal (which they chose not to uphold) I raised several matters of disability discrimination which were verified by a solicitor as such. The grievance was also poorly handled as it was the same person that handled both that and the appeal.Taking this into account, I'm assuming if I'm offered any settlement and I ask a solicitor to look at it I cannot appeal? Thanks.

No, the appeal and settlement agreement are entirely separate, so until you have formally agreed and signed the settlement, your rights remain unchanged and you can proceed with an appeal

Customer: replied 1 year ago.
Thanks very much, Ben. That's made things much more clear. Much appreciated.

You are welcome, all the best