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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 75057
Experience:  Qualified Solicitor
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I have been dismissed by the NHS Trust I worked for since

Customer Question

Hi. I have been dismissed by the NHS Trust I worked for since 2014
JA: Where are you? It matters because laws vary by location.
Customer: I lives 3 miles from Liskeard, Cornwall. The trust I worked for is Cornwall Partnership NHS Foundation Trust
JA: What steps have you taken so far?
Customer: I was a Community Phlebotomist. Since the first lockdown I have been shielding as I was identified as a vulnerable person. So since then I have done admin work, in addition to another admin
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: They have tried to redeploy me, but for several reasons the trials weren't successful. In one case I found the right job but that vacancy was withdrawn. Unfortunately the way it was put down sounds like it was my choice
Submitted: 11 days ago.
Category: Law
Expert:  Ben Jones replied 11 days ago.
Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.
Expert:  Ben Jones replied 11 days ago.

What reason did they provide for dismissing you? and what is your specific query in relation to this please, so that I can best advise?

Customer: replied 11 days ago.
The reason is that they could not identify any position in the Trust were I would be able to work. As I sais there was one, but it was withdrawn during my trial, after 3 days. They also put it down like it was due to my feelings. Apart froOne of my problems was that face masks give me panick attacks for lack of air (combined with asthma and nasal congestion), but that is not just a feeling, it is a mental illness. NHS trusts are committed to promote equality and diversity and accept people like me with a substancial disability. There is another thing. I wasn't given any money. Obviously, they indeed allowed me to stay for a year and a half, doing work very different from the one I was employed for. I am obviously grateful for that. Strangely though, on my manager's report to her superiors HRs, it was written how not having me back in my role was straining the other staff, as I was the only Phlebotomist in the team; so the blood test I was expected to do had to be done all by other staff. Yet, despite the last meeting on the 20th of July 2021 stated i was to leave that team (and the Trust if I wasn't redeployed by then), on the 8th of September, my last day of work, there was still no vacancy of phlebotomist out to replace me. I wonder if I should be given a redundency in this case
Expert:  Ben Jones replied 11 days ago.

OK I understand and thank you for providing this information. Please leave it with me for now; I will get back to you with my answer as soon as I can, usually the same day. The system will notify you when this happens. Please do not reply in the meantime as this may unnecessarily delay my response. Many thanks.

Expert:  Ben Jones replied 11 days ago.

Many thanks for your patience, I am pleased to be able to continue assisting with your query now. First of all, I am sorry to hear about the issues you have experienced in your situation.l

I do not believe redundancy would have been due here because this is not a redundancy situation to start with. In fact, Lack of capability, where an employee is unable to perform the job they were employed to do due to ill health, is a potentially fair reason for dismissal under the Employment Rights Act 1996. An employee’s capability is assessed by reference to their skill, aptitude, health or any other physical or mental quality.

Apart from showing that capability was the reason for dismissal, the employer would also be required to follow a fair procedure. Case law on fairness in these circumstances states that the employer should establish the true medical position and consult with the employee before deciding whether to dismiss. Another important consideration is whether any reasonable employer would have waited longer in the circumstances, or taken other steps first, before dismissing the employee.

When looking at the reasonableness of such a dismissal, an Employment Tribunal will usually look at the following factors:

- What was the nature of the illness and did the employer make attempts to gather more information on it, such as asking for medical reports or examinations

- What are the prospects of the employee returning to work and the likelihood of the recurrence of the illness

- The need for the employer to have someone doing the work

- The effect of the absences on the rest of the workforce

- The employee's length of service

- Was the employee consulted over their position

- The availability of other suitable employment that the employee could do instead

In any event, dismissal should only ever be used as a last resort. Only when it is obvious that the employee cannot continue in their job, that their absences are having a detrimental effect on the business and that there were no alternative roles 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 from a legal perspective and there is no single list of medical conditions that qualify. Potentially anything can amount to a disability if it meets the required criteria.

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 and examine it in more detail below:

- Physical or mental impairment – this can include practically any medical condition, be it a physical or mental impairment

- Substantial effect – the effect must be more than minor or trivial

- Long-term - 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. shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities)

Please also take a look at this detailed guide on determining if the condition(s) in question amount to a disability:

https://www.citizensadvice.org.uk/work/discrimination-at-work/checking-if-its-discrimination/check-if-youre-disabled-under-the-equality-act/

If a person satisfies the necessary criteria, they will be classified as being disabled in a legal sense and will have automatic protection against discrimination. This 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 is classified as disabled, this could also amount to disability discrimination.

The first step is to formally appeal a dismissal with the employer using the internal appeals procedure. After that, the only option available is to submit a claim in the Employment Tribunal for unfair dismissal (subject to having at least 2 years' continuous service), and/or pursue a claim for disability discrimination (no minimum service required for that). The next steps to start the process would be to initiate what is known as an ‘early conciliation’ procedure through ACAS, either online by filling in the following form (https://tell.acas.org.uk/find-a-solution-to-your-employment-dispute), or by phone on 0300(###) ###-####

Expert:  Ben Jones replied 11 days ago.

Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.

Expert:  Ben Jones replied 11 days ago.

Hello, I trust that everything has now been dealt with to your satisfaction and your original question has been resolved. If you have any further queries about it, please do not hesitate to get back to me on here. In the meantime, I wish you all the best.