Ben Jones : , my name is ***** ***** it is my pleasure to assist you with your question today. Did you appeal the dismissal directly with the employer? Please note I am in tribunal today so may not be able to respond immediately but will do so later today thank you
Customer: No,it was clear to me that it would have been a fruitless excercise as
Customer: No, I left the review knowing it would be wasted effort to go to appeal.
Customer: What are your thoughts on my current situation, have I a recourse of action that could be taken against my employer?..I believe I've been discriminated against because of my resultant head injury and current condition.
Ben Jones :
again and thanks patience. Capability, where an employee is unable to perform their job due to ill health, is a potentially fair reasons 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 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 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.
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.
You can now consider submitting a claim dismissal and/or disability discrimination in the employment tribunal – these must be made within 3 months of your termination.
Hope this clarifies your position? If you could please let me know that would be great, thank you
Customer: That's certainly has clarified my current situation,Thankyou and much appreciated.
Customer: I know this might sounds premature but what are the potential outcomes? I appreciate that's based on the information supplied surrounding my individual circumstances and my employers actions but it would be useful to know of the pros and cons before I decided wether or not to take further action.
Ben Jones :
The potential outcomes of a claim would be:
- Unfair dismissal – compensation of earnings. You would have a duty to find a new job as soon as possible but if you are unable to do so then the tribunal can issue compensation loss of earnings. The amount would depend based on your employability at the time, the job market and what a reasonable time it would be in the circumstances to find a job
- Disability discrimination - If a claim is made, the usual remedy would be to award compensation to feelings. This is calculated by considering the level of discrimination that the claimant has been subjected to. The seriousness of the discriminatory behaviour is assigned to one of three ‘bands’ known as Vento bands, named after a court case with that name. The current compensation levels are as follows:
- Lower band - serious cases, an isolated incident or event (£600 - £6,000)
- Middle band - cases which are not serious enough to fall within the highest band (£6,000 - £18,000)
- Top band - most serious cases, if there has been a lengthy and calculated campaign of harassment/discrimination (£18,000 - £30,000)
A new feature in the employment tribunal’s claims process is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal.
If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return agreed financial settlement.
The conciliation procedure and the form to fill in can be found here:
Hope this clarifies your position?
Customer: One last point: will the ACAS route require legal representation to conclude?
Ben Jones :
no it would not, this is just between you, the employer and ACAS - no legal representation is required and the process is free
Customer: Thank you very much assistance,you've been extremely helpful