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Ben Jones
Ben Jones, UK Lawyer
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Hi I am currently off sick with Chronic Fatigue Syndrome, for

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Hi I am currently off sick with Chronic Fatigue Syndrome, for 13 weeks so far. I have been working full time for the 7 years that I have had it and was diagnosed 4 years ago. After working for my employer for 27 years I am considering that I might not be able to return to work as my symptoms are getting worse. I have seen a counsellor, occupational health specialist, doctor and CFS specialist. I do pay into the West Midlands pension fund who have an option for Ill health retirement. However, the feedback I have been given so far indicates that it is unlikely I will get this even though the Occupational Health Advisor has stated that in her opinion my condition is likely to mean that I will be unable to continue with my job. I am worried that if I apply for Ill health retirement and the application fails, that my employer will terminate my contract. I would like your opinion of a successful application and any case law I can refer to and what my position would be should the application fail?
Many thanks
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Why do you think your employer would terminate your contract?

Customer: Because my manager does not like the fact that I have time off sick with the illness.
Customer: Sorry I also meant to say that I am assuming that my employer would argue that I cannot carry out my role as surely this would be the basis of the ill health retirement application.
Customer: Hi Ben are you able to provide me with an answer yet or are you still working on it?
Ben Jones :

Hi sorry I was offline by the time you had replied last night and have been in tribunal all day today.

The starting point is that the employer can consider terminating your employment on grounds of capability regardless of whether you have made an application for ill health retirement or not.

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.

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 relation to the option of ill health retirement, here is some relevant case law:

  • Aspden v Webbs Poultry & Meat Group (Holdings) Ltd - where an employer operates a scheme for long-term sickness or incapacity benefits, the courts may imply a term preventing dismissal if dismissal would deprive the sick employee of benefits to which they would otherwise become entitled under the scheme.

  • Villella v MFI Furniture Centres Ltd - there was an implied term that the employer would not terminate the employment, except for a cause other than ill-health, in circumstances which would deprive the employee of the continuing benefit of the disability benefit.

  • First West Yorkshire Limited v Haigh - the reasonable employer should give proper consideration to an ill-health retirement scheme before it dismisses an employee for long-term sickness.

Hope this clarifies your position? If you could please let me know that would be great, thank you

Customer: Hi Ben
Customer: thanks for this but I was hoping for specific case law relating to CFS in relation to:
Customer: Successful applications for ill health retirement as a result of CFS
Customer: and whether an application for ill health retirement places my employers in a position where they can use the detail within the application as a reason for dismissal? Is there any case law that I can cite as a precedent in the application?
Customer: Also you have not mentioned anything about the Equality Act and what reasonable adjustments should be attempted before dismissal becomes an issue. For example, I requested to have four weeks unpaid leave a year as I was getting ill every 3 months. My employer keeps going on about this as though they have done me a favour in terms of reasonable adjustments. However, speaking to the Occ Health advisor she confirms my thinking in that they haven't really done anything as other companies do not expect the employee to pay for reasonable adjustments. Sorry this has all come through separately as I kept pressing the return button by accident.
Ben Jones :

You are unlikely to have such specific case law that deals with specific illnesses, at least not anything that has gone to the higher courts and which would be binding. There may have been cases about CFS in the tribunals and they would not have gone further but these would be unreported and not legally binding on the tribunals should you decide to take your case there.

Ben Jones :

But the specific condition itself is not important, that is not what determined the success of an application for ill health retirement because even if someone has had that condition in the past, the way it affected them would be unique and you will never be able to find a like for like comparison

Ben Jones :

In terms of reasonable adjustments, the employer does have a duty to consider making these before they proceed with dismissal or retirement. So if making such adjustments will assist you in retaining your job then they have to do these before they proceed with dismissal

Ben Jones :

The employer will have to pay for such adjustments and costs in itself will not be a factor to consider if they try and claim that they cannot make such adjustments

Ben Jones :

Hope this clarifies things for you ?

Customer: Thanks Ben, yes it does.
Ben Jones :

you are welcome, all the best

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