I would like some advice on employment law and disability. I have been asked to a meeting on monday in work where it has been made clear I will be dismissed on capability. I had Guillain Barre syndrome back in July 2008 which as left me with foot drop in both feet so walk with AFO's and a crutch due to the nerve damage. I was off work for about a year, 7 months of which I was in hospital. I have been off work since November due to a problem with my voice, I have been dignosed with dysphonia and dysarthria with breathlessness. I spoke to works occupational health back in March 2011 after an incident where I was sent to hospital from work when part of my face went numb and my speech slurred. The doctor said that this was probably due to nerve damage i'd previously had from my Guillain Barre Syndrome so I initially raised concern with my voice back then. I went to see occupational health again in October 2011 because I was still having problems with my voice going hoarse ( I work in a call centre on the phones). They recommended I see an ENT doctor so asked if i could get permisson from my doctor so they could send me privately, which i did. The ENT doctor looked at my vocal cords and stated there was a problem with tension in my vocal cords (dysphonia) and recommended I see a speech therapist and stated that i should rest my voice if it was at all hoarse. I did ask work at this point if i could do other work off the phones but was sent home. Work funded for me to see a private speech therapist who sent a report to work stating that i should be given an administrative type role as phone work could damage my voice further. Works response has been that they are now going to dismiss me on capability claiming there is no other work available. I have asked about doing correspondence by email, something the rest of my team were doing before only to be told this work had been off-shored and told other admin teams were full. On a seperate issue I have raised a grievance about an employee making a comment about where i sat at work being a "retard desk" and also in reference to the access to work report stating i should not hot desk and that i should be sitted next to work facilities such as the toilets, rest room etc but this was ignored and i'd been moved several times and sat in the middle of the call centre floor, away from the rest of my team which made me feel isolated. Nobody had yet replied about my grievance. I did sent it informally by email on 6th March to my manager but have raised it again at the beginning of this week by letter. I have also had confirmation from my union rep that work will pay me payment in lieu but have stated they are only going to pay me 7 weeks but my contract states my industry start date is 16th June 2003. Can work legally dismiss me on capability and what are my rights?
State/Country relating to question: United Kingdom
Hello and thank you for your question, which I will be happy to assist you with. Please let me know how long you have worked there? I am just going offline but will get to this first thing in the morning if thats OK?
I have worked for the company since 16th june 2003 so 8 years 9 mths
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
Thank you. In terms of payment in lieu and how much you are paid, is this affected by any probationary period I had at the beginning of my contract? My employer states they are only paying 7 weeks instead of 8 because of when I passed probation.
Was there a break in employment between probation and the job you were subsequently given?
In that case you are entitled to count the probationary period towards your continuous employment. The fact it was just a probation changes nothing - you were still an employee and worked for the company so this period would go towards your total service when calculating your notice period.As your original question has been answered I would be grateful if you could please press Accept. I can continue providing further advice if necessary. Thank you.
Expert in UK Employment Law
Thank you this was what I thought ,so would this be a breach of my contract as the contract states I started on 16th June 2003 and should be paid payment in lieu for 1 week of every year of continuous employment.
THIS ANSWER IS LOCKED!You can view this answer by clicking here to Register or Login and paying £3. If you've already paid for this answer, simply Login.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).