Apologies for the slight delay, I experienced some temporary connection issues earlier. Dismissing an employee due to their sickness record or capability to do the job is a potentially fair reason for dismissal under the Employment Rights Act 1996. However, to justify it as being fair the employer needs to follow a fair procedure. The following is a summary of what needs to happen:

First and foremost the employer needs to comply with any relevant sickness or absence procedures and employment contract provisions.

Then they need to conduct an investigation, which would involve:
• Investigating the nature, extent and likely duration of any illness. Asking the employee for information and obtain medical reports if appropriate.
• If absences are short-term and intermittent, investigating whether there is any underlying cause (medical or otherwise). If necessary, following capability or disciplinary procedure, offering practical guidance and assistance, setting timescales for improvement, and giving warnings where appropriate.

The employer then needs to review the alternatives:
• Before taking a decision to dismiss, consider surrounding circumstances, age and length of service of employee together with action taken in respect of similar circumstances in the past.
• Consider importance of employee and/or the post occupied, to the business, the impact their continued absence is having on the business and the difficulty and cost of continuing to deal with their absence before contemplating dismissal.
• Consider whether employee could take up alternative employment or whether there are any other options that would avoid the need for dismissal.
• If the employee has been absent long-term and is unlikely to return in the foreseeable future the employer should consider claiming under terms of any Private Health Insurance policy or ill health retirement (and seeking additional medical evidence for such a claim if required).

Dismissal must always be the last resort as dismissals for capability are always difficult to justify to tribunals, who, not unreasonably, may have sympathy with employees who have been ill, especially if the reason for their absences is a condition that amounts to a disability under law.

Disability 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 for legal purposes, they need to establish whether they meet the definition of ‘disability’ as laid down in law.

Disability is one of the protected characteristics under the Equality Act 2010 (“EA”) and is defined 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 down this definition so that you get a better idea of the requirements necessary for a condition to amount to a disability:
• Physical or mental impairment – this can include nearly any medical condition. It includes progressive conditions, can include mental conditions such as depression and dyslexia and certain conditions (e.g. cancer, HIV and multiple sclerosis) are automatically protected from the point of diagnosis;
• Substantial effect – the effect must be more than minor or trivial;
• Long-term - the effect of the impairment must have lasted or is likely to last for at least 12 months;
• Normal day-to-day activities – these are not defined but would include anything considered ‘normal’ in one’s normal daily routine (e.g. eating, washing, driving, walking, going shopping, etc.)

If you consider yourself to be disabled certainly mention this to the employer as they will need to treat you more sensitively in the circumstances and dismissal would be even harder for them to justify.

However, if there really isn't anything they can offer you as an alternative and they can't make any reasonable adjustments, dismissal is an option.

Please press Accept for the advice given so far. If necessary, I can then provide further advice and guidance as required and answer any specific questions you may have. Thank you

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