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Ben Jones
Ben Jones, Solicitor
Category: UK Employment Law
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Experience:  Expert in UK Employment Law
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I have been in employment for 28years. About 10 years ago my

Resolved Question:

I have been in employment for 28years. About 10 years ago my employer contracted the service to agency. 8 years ago I became ill and suffered stroke. After my illness I returned back to work. My health deteriorated about 5months ago and suffering from arthritis. I have been referred by the Doctor for further checks and more medication was given. I received a letter of suspension for one month from my agency titled your condition.
Two days to resuming work I received another letter asking me to attend a meeting that week and to come and explain why I should not be sacked, because my condition has become a danger to my self and my co walker an there no other placement for me in the company.
I wrote to them that that I could not attend the meeting but will come when I get better. They insisted coming to my home to conduct the meeting. I have since stopped contacting them but I have sent a sick note. How do I move forward from here.
Submitted: 1 year ago.
Category: UK Employment Law
Expert:  Ben Jones replied 1 year ago.

Ben Jones : Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.
Ben Jones : What is it that you would like to achieve?
Customer:

I need advice onthis

Ben Jones : What is your goal please?
Customer:

I am going to lose my job for health reason and would like to know what my entittlement are?

Ben Jones :

Apologies for the slight delay, I experienced some temporary connection issues earlier on. All seems to be resolved now so I can continue with my advice.


 


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:



  • The employer needs to hold reasonable belief in the employee’s incompetence;

  • They have conducted a proper investigation into the capability issues;

  • The employee has been made aware of the problem and been given an opportunity to improve within a realistic timescale;

  • The employee has been provided with appropriate support and/or training;

  • The employee's progress is reviewed during the review period;

  • The employee is offered a right of appeal against the decision to dismiss.


 


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:



  • Physical or mental impairment – this can include nearly any medical condition, including progressive conditions and mental conditions such as depression;

  • Substantial effect – the effect must be more than minor or trivial;

  • Long-term - the effect of the impairment must either have lasted or be likely to last for at least 12 months;

  • Normal day-to-day activities – these are not defined but would include anything considered ‘normal’ in a person's normal daily routine (e.g. eating, washing, driving, walking, shopping, etc.)


 


If it appears that the employer has taken a particularly heavy-handed approach and failed to satisfy at least some of the requirements that make a capability dismissal fair, the option exists of appealing to them first before submitting a claim for unfair dismissal, subject to having at least 2 years' continuous service (and possible disability discrimination if the condition in question amounts to a disability) in an employment tribunal.

Customer:

Thank you where do I stand now with the constant demand this meeting that my employer is demanding to conduct in my home, despite the receipt of the sick note

Ben Jones :

they cannot force you to allow them to hold the meeting at your house. If you are too unwell to meet with them you can request that it is postponed. they can eventually hold it in your absence but not straight away and not if there has been no previous postponement. Constant demands to see you could eventually amount to harassment

Ben Jones :

I hope this has answered your query. Please take a second to leave a positive rating, or if you are unhappy for some reason with the advice - please get back to me and I will assist further as best as I can. Thank you very much

Customer:

The doctor had given a month off as some test are being done. Could they terminate within the time of my sickness?

Ben Jones :

It is entirely possible to terminate someone's employment whilst they are still off sick, after all employees who are off indefinitely or on very long absence can still be terminated if a fair procedure is followed, as explained in my original advice. But to justify such a dismissal as fair the employer has to show that there was a good reason to dismiss, so if you were likely to return in the near future or there were pending tests to determine if that is the case, a dismissal would be seen as a knee-jerk reaction and could be unfair.

Ben Jones :

As your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do. I can then continue providing further advice and answer follow up questions if needed. Thank you.

Customer:

Thanks

Ben Jones, Solicitor
Satisfied Customers: 39029
Experience: Expert in UK Employment Law
Ben Jones and other UK Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

I wrote to the personnel that their continuous letters requesting to conduct interview in my home in other to explain why I should not be sacked after they have received my doctors note for not fit for work was harassment. The personnel replied was that 'it was not my intention to harass you'.


 


Will this letter make a good case for harassment and compensation

Expert:  Ben Jones replied 1 year ago.
The letter on its own will not guarantee a successful claim. It is not necessarily going to amount to an admission of harassment because I would not say it was intended as such. The key is still their actions so far and whether they qualify as harassment. In an event, I would not say this is a serious case of harassment that I would recommend you pursue as a harassment claim in the civil courts. It is more to be used as a tool to stop any further similar behaviour by the employer
Customer: replied 1 year ago.

What is likely to be the outcome of this, if they are found guilty?


 

Expert:  Ben Jones replied 1 year ago.
Found guilty of harassment? Then it will simply be some financial compensation
Ben Jones, Solicitor
Satisfied Customers: 39029
Experience: Expert in UK Employment Law
Ben Jones and other UK Employment Law Specialists are ready to help you

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Ben Jones
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Expert in UK Employment Law