UK Employment Law
UK Employment Law Questions Answered by Verified Experts
I worked there 8 years with the prison service 3.5 years at that establishment. I have had 11 sicknesses in 20 months, 8 conected to the orginal glandular fever 2 to work place stress
First of all I must advise that we cannot give you prospects of success if you were to take them to tribunal. We simply do not have enough information to do so and only a solicitor who has met with you and conducted a full case analysis can advise if you will have a good case. What I can tell you is how the law works in cases of capability dismissals, and what is expected of the employer.
Capability is one of several 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 reasonableness of the employer's decision in the particular circumstances and the procedure that was followed. Basically, the employer needs to show they had reasonable grounds to believe that the employee was incapable of performing their job.
Case law has established that a dismissal on grounds of capability can be unfair if the following key elements have not been satisfied:
Dismissal must always be viewed as a last resort by the employer. This is especially true if the reason their capability is affected is due to a condition that amounts to a disability under law.
Whether a condition is a disability will depend on a number of factors. 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 legal definition of ‘disability’.
The Equality Act 2010 (“EA”) 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:
In terms of taking this further and to answer your specific questions, it is recommended that you follow the appeals procedure because if you do not and the employer believes you did so without reasonable justification, any award you get may be reduced by the tribunal. If you get paid in lieu of notice it would change nothing and certainly does not mean you can't take them to tribunal - that would still be possible.
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