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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 49816
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I have been placed on a stage 2 sickness level at work at the

Customer Question

I have been placed on a stage 2 sickness level at work at the next stage i could be potentially dismissed the time off work was with a chest infection i have had asthma since childhood i am now 33 i have explained that under the equality act i should be covered as asthma is a disability i take a steroid inhaler daily i can carry out normal day to day activities usually so long as i take my steroid inhaler if i did not take it i would not be able to but when i get chest infections or colds i can not carry out normal day to day activities as i am usually bed bound i was on steroids and antibiotics as well as my inhalers during the time off even though i have explained chest infections is a trigger and linked to my disability they say i am not covered under the equality act because on my sick note from the doctor it says chest infection and not asthma is this true does my sick note have to say asthma and not chest infection
Submitted: 5 years ago.
Category: Law
Expert:  Ben Jones replied 5 years ago.
Hello, my name is Ben and it is my pleasure to be able to assist with your question today. Please let me know how long you have worked there?
Customer: replied 5 years ago.

just over 11 years

Customer: replied 5 years ago.

hello im still waiting for my answer ?

Expert:  Ben Jones replied 5 years ago.
Apologies for the slight delay, I experienced some temporary connection issues earlier. Capability is one of several 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 reasonableness of the employer's decision in the particular circumstances and the procedure that was followed. Basically, the employer needs to show they had reasonable grounds to believe that the employee was incapable of performing their job.

Case law has established that a dismissal on grounds of capability can be unfair if the following key elements have not been satisfied:
• The employer needs to hold reasonable belief in the employee’s incompetence;
• They have conducted a proper investigation into the capability issues;
• The employee has been made aware of the problem and been given an opportunity to improve within a realistic timescale;
• The employee has been provided with appropriate support and/or training;
• The employee's progress is reviewed during the review period;
• The employee is offered a right of appeal against the decision to dismiss.

Dismissal must always be viewed as a last resort by the employer. This is especially true if the reason their capability is affected is due to a condition that amounts to a disability under law.

Whether a condition is a disability will depend on a number of factors. Disability can have a broad meaning and there is no single list of conditions that amount to a disability under law. Instead, to establish whether a person is disabled for legal purposes, they need to establish whether they meet the legal definition of ‘disability’.

The Equality Act 2010 (“EA”) 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:
• Physical or mental impairment – this can include nearly any medical condition, including progressive conditions and mental conditions such as depression;
• Substantial effect – the effect must be more than minor or trivial;
• Long-term - the effect of the impairment must either have lasted or be likely to last for at least 12 months;
• Normal day-to-day activities – these are not defined but would include anything considered ‘normal’ in a person's normal daily routine (e.g. eating, washing, driving, walking, shopping, etc.)

If it appears that the employer has taken a particularly heavy-handed approach and failed to satisfy at least some of the requirements that make a capability dismissal fair, the option exists of appealing to them first before submitting a claim for unfair dismissal (and possible disability discrimination if the condition in question amounts to a disability) in an employment tribunal.

Please take a second to leave a positive rating as that is a very important part of our process. Your question will not close and I can continue providing further advice if necessary. Thank you