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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 61099
Experience:  Qualified Employment Solicitor
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18 years permanent employee, been off 6 months full pay

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18 years permanent employee, been off 6 months full pay after heart surgery. Just returned and struggling. They are offering me a further 3 months full pay, after which contract terminated. Is that right? Retiring 2020?
Assistant: Has the employee discussed the termination with a manager or HR? Or with a lawyer?
Customer: Both manager and hr
Assistant: Does the workplace operate with employees, freelancers, consultants, contractors or with unionised employees?
Customer: Union employees
Assistant: Anything else you want the Lawyer to know before I connect you?
Customer: Down for another heart op , no date yet

Hello, I’m Ben, a UK lawyer and will be dealing with your case today. Firstly, I need to ask some initial questions to determine the legal position.

Why have they made this offer and what are you ideally hoping for?

Customer: replied 8 days ago.
Unable to do job required, all physical work, suggested that I might work in office but never done it. Settlement figure

Thank you. I will get back to you with my answer as soon as I can, which will be at some point today. The system will notify you when this happens. Please do not reply in the meantime as this may unnecessarily delay my response. Many thanks.

Many thanks for your patience. What they appear to eb doing is trying to terminate your employment on grounds of capability. Capability, where an employee is unable to perform the job they were employed to do due to ill health, is a potentially fair reason for dismissal under the Employment Rights Act 1996. Capability is assessed by reference to the employee’s skill, aptitude, health or any other physical or mental quality.

 

Apart from showing that capability was the reason for dismissal, the employer would also be required to follow a fair procedure. The leading case on fairness in these situations said that the employer should establish the true medical position and consult with the employee before deciding whether to dismiss. Another 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 factors:

{C}· What was the nature of the illness and did the employer make attempts to gather more information on it, such as asking for medical reports or examinations

{C}· The prospects of the employee returning to work and the likelihood of the recurrence of the illness

{C}· The need for the employer to have someone doing the work

{C}· The effect of the absences on the rest of the workforce

{C}· The employee's length of service

{C}· Was the employee consulted over their position

{C}· The availability of other suitable employment that the employee could do instead

 

In any event, dismissal should be used as a last resort. Only when it is obvious that the employee cannot continue in their job, that their absences are having a detrimental effect on the business and that there were no alternative roles 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 was classified as disabled, this could also amount to disability discrimination.

 

The first step is to formally appeal a dismissal with the employer using the internal appeals procedure. After that, the only option available is to submit a claim in the employment tribunal for unfair dismissal (subject to having at least 2 years' continuous service), and/or pursue a claim for disability discrimination (no minimum service required for that).

 

It is worth mentioning that there is a possible alternative solution, where the employer is approached on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under such an agreement, the employee gets compensated for leaving the company with no fuss and in return promises not to make any claims against the employer in the future. It is essentially a clean break, where both parties move on without the need for going to tribunal. However, it is an entirely voluntary process and the employer does not have to participate in such negotiations or agree to anything. It just means that these discussions cannot be brought up in any subsequent tribunal claim and prejudice either party. So there is nothing to lose by raising this possibility with the employer as the worst outcome is they say no, whereas if successful it can mean being allowed to leave in accordance with any pre-agreed terms, such as with compensation and an agreed reference.

 

Does this answer your query?

 

Hello, I see you have read my response to your query. Could you please let me know if it has answered your original question? You can simply reply on here with a quick ‘Yes, thanks’ and I won’t bother you again. Thank you

Customer: replied 7 days ago.
Yes thanks I'm now in touch with my union, thanks again.

All the best

 

Customer: replied 7 days ago.
Yes thanks

Welcome

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