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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 61737
Experience:  Qualified Employment Solicitor
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I have been employed by my employer for four years, early

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I have been employed by my employer for four years, early this year I was diagnosed with moderately severe depression by the companies occupational health team. The depression is affecting my work, and the company has discussed the issues with me and placed me on a PIP. I am concerned that my management may be losing patience because the treatments I have received (I have sought help both from the NHS and privately) have not resolved my issues and my depression remains a serious issue. I would like to know my rights in this situation.
JA: Have you discussed this with a manager or HR? Or with a lawyer?
Customer: I have discussed the situation with y line manager.
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: full time employee.
JA: Anything else you want the Lawyer to know before I connect you?
Customer: not in a union.

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

What are you ideally hoping to achieve in the circumstances, please?

Customer: replied 8 days ago.
I would like to know my rights in regards of keeping my job, what process my employer would need to go through to fire me. Basically just to understand my situation better.
Customer: replied 8 days ago.
I believe my employer may seek to deal with me as a performance issue, as I am no longer able to complete my job role to its full extent due to the depression. Does that fact this issue arises from depression make any difference to my situation?

Sure 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:

· 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

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

· The need for the employer to have someone doing the work

· The effect of the absences on the rest of the workforce

· The employee's length of service

· Was the employee consulted over their position

· 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.

 

It is also important to consider the additional rights someone would have if the condition that is affecting them amounts to a 'disability'. This can have a broad meaning from a legal perspective and there is no single list of medical conditions that qualify. Potentially anything can amount to a disability if it meets the required criteria.

 

The Equality Act 2010 defines a disability as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.

 

I will break this definition down and examine it in more detail:

  • Physical or mental impairment – this can include nearly any medical condition, be it physical or mental
  • Substantial effect – the effect must be more than minor or trivial
  • Long-term - the impairment must either have lasted or be likely to last for at least 12 months
  • Normal day-to-day activities – these could include anything considered ‘normal’ in a person's normal daily routine (e.g. shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities)

 

If a person satisfies the above criteria, they will be classified as being disabled and will have automatic protection against discrimination. This means that they must not be treated unfavourably because of their disability. In addition, their employer would have a duty to make reasonable adjustments if they are likely to be placed at a substantial disadvantage when compared to non-disabled employees.

 

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).

 

Does this answer your query?

Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 8 days ago.
Thank you for clarifying that for me.

All the best