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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 50163
Experience:  Qualified Solicitor
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good morning I have an employee that has been with me for

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good morning
I have an employee that has been with me for 24 years,he is now 40 years of age and is suffering from type 1 diabetes which is causing him to have a lot of time of work through his illness. We are a small business and rely on reliable regular attendance of staff. His job is in our parts department and involves running up and down stairs,picking and packing parts order etc and requires a certain level of fitness,he works alongside one other member off staff. He is grossly overweight and just doesnt look after himself which i consider contributes to his absence. He still smokes and is daily eating pasties or pies. Whenever he is absent I have to stand in for him and do his job which leaves me then falling behind with my own work leading to me having to work more hours to catch up. Last night i was working until 10pm clearing my work after standing in for him again this week. It has now come to the point where i consider he is no longer capable of doing his job. What are my options in terminating his employment and replacing him?.
Kind Regards
Derek Rayner

Ben Jones : Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. Are you able toake any adjustments to help him with his job?

Good Morning


Yes i have reduced his hours and he now works from 9 til 1 monday and thursday. 12 til 6 tuesday and wednesday and 11-5.30 on a friday without any reduction in his pay. We have tried to assist him with doing less active work and allowing him more computer and telephone work sitting down. The problem i have is that a a key member of staff he can no longer do the job to which he was employed and i can only see the situation getting progressively worse as time goes on.

Ben Jones :

Hi, sorry I was just on my way to work when I picked up your question earlier. If you wanted to look at potentially terminating this person’s employment, you would be relying on capability as your reason for doing so. 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.


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 and there is no single list of conditions that amount to a disability under law. Instead, to establish whether a person is disabled, they need to show they satisfy the legal definition of ‘disability’.


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:

  • Physical or mental impairment – this can include nearly any medical condition;

  • 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 could include anything considered ‘normal’ in a person's normal daily routine (e.g. walking, driving, speaking, eating, washing, etc.)


If a person satisfies the above criteria, they will be classified as being disabled and will have automatic protection against discrimination, which 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.


What amounts to ‘reasonable adjustments’ can have a wide interpretation and often depends on the individual circumstances of the employer, their business, the potential impact on other employees, the available resources, etc. Whilst legislation does not currently provide specific examples of what adjustments can be made, the following are examples that have been considered reasonable in case law over time:

  • making adjustments to work premises;

  • allocating some of the employee’s duties to others;

  • transferring the employee to fill an existing suitable vacancy;

  • altering the employee’s hours of work;

  • allowing the employee to be absent during working hours for rehabilitation, assessment or treatment connected to their disability;

  • acquiring or modifying specialist equipment;

  • providing supervision or other support.


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 condition amounted to a disability, this could also amount to disability discrimination.


So you need to ensure all the relevant factors from above have been given proper consideration and only proceed with a dismissal if you are certain that there is nothing further that can be done and that the employee is now no longer capable of performing their job or any other job in a reasonable capacity.


many thanks for your informative reply and it has been most helpful.




Derek Rayner

Ben Jones :

You are most welcome, all the best

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