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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50196
Experience:  Qualified Employment Solicitor
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We have an employee who has been off on the sick for 27

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Good afternoon, we have an employee who has been off on the sick for 27 weeks now. We have followed the appropriate steps I.e sick pay, weekly correspondence and finally a later with the opinion of a fazed return to employment. Now he has refused the fazed return saying he can't work at all. Now because we have given him that option and he has refused do we have to make him redundant or basically let him go. I.e if he gave him the final option of fazed return or he will no longer be a part of the company.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

How long has the employee worked there for?

Customer: replied 1 year ago.
Just over two years he has worked with us

OK thank you, ***** ***** it with me. I am in court today so will prepare my advice during the day and get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Thank you.

Thanks for your patience. You will not be making him redundant as you are not facing a redundancy situation where you need to reduce headcount. What this would amount to is a capability dismissal, where you are potentially terminating their employment based on the fact they are no longer capable of doing their job.

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. However, if you have covered the above points, you have offered them suitable alternatives for work and they are simply unable to work in any capacity, then you can consider terminating their employment on grounds of capability.

This is your basic legal position. I have more detailed advice for you in terms of what the person would be due on termination, 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

Hello, my response should be visible on this page. Please let me know if this has answered your original question and if you need me to discuss the next steps in more detail? In the meantime please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. The question will not close and I can continue with my advice as discussed. Thank you

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Thank you. On dismissal this person would simply be entitled to their contractual notice period (which cannot be less than their statutory notice entitlement of 1 week for every year of service, up to a maximum of 12 weeks) and also any accrued holidays that are outstanding at the time of termination.