Many thanks for your patience. 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
• If the employee has been absent long-term and is unlikely to return in the foreseeable future the employer should consider claiming under the terms of any Private Health Insurance policy or ill health retirement that is available.
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 if the dismissal took place because the employer was trying to avoid payment under some insurance or other sickness cover or death policy, the dismissal is likely to be unfair and/or discriminatory. The discrimination aspect would come under the Equality Act which classifies someone suffering from cancer as being disabled and provides protection against detrimental treatment.
This is your basic legal position. I have more detailed advice for you in terms of the options you have if the dismissal still takes place, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you