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).
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