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Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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My employer are now asking me to attend a Formal Sickness Review

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My employer are now asking me to attend a Formal Sickness Review Meeting 21/05/12 following me being off work re work related stress, anxiety & depression since 08/02/12. I have had 3 Sickness Absence Reviews, monthly March 2012; Attended 2 Occupational Health Referrals; Attending regular GP Appointments since Feb 2012, to to-date and following advise from my GP and OH, am working to an achievable return to work date of 30/07/2012.

My employer has at no stage admitted responsibility of the reasons behind my current illness; I have had no Risk Assessment completed via HR and the wording of this Formal Hearing is to establish whether I am able to provide full and effective service as an Office Manager in the foreseeable future (of which I have worked for this company for 12 years and never been absent from work in this manner before or ever been assessed in past supervisions / appraisals of not being able to complete my role effectively).

In my absence my employer advises of the Impact to the Organisation in relation to my absence: Two enhanced business support staff are undertaking Office Manager duties in my absence (where there has only been me); Other members of my business support team / staff have also had to undertake extra work, which my employer advises this is creating additional stress (hence why I am off work, but my role is currently being shared between numerous members of bodies instead of only one).

My employer goes on to say my level of absence has had a significant impact on service delivery but doesn't list this significant impact, but merely, I feel, evidence the extent of my role and how I addressed my workload pressures, which in the end has now made me extremely poorly.

My employer ends with "the service cannot continue to sustain my level of absence until 30/07/12". I find this level of support, after my 12 years of service, appauling.

I don't want to be dismissed, I want to return to work and I feel my employer hasn't provided me with the constructive support / resolution, relating to me being off work due to work related stress, anxiety and depression. Where do I stand legally and what advice would you be able to offer me in relation to me attending this Formal Hearing on 21/05/12?

Kind regards
Kirsty Bradbury
Submitted: 5 years ago.
Category: UK Employment Law
Expert:  Ben Jones replied 5 years ago.
Hello and thank you for your question, which I will be happy to assist you with. Please let me know if you have actually been told you will be dismissed?
Customer: replied 5 years ago.

The letter states:


I must inform you that a possible outcome from the hearing may be termination of your contract of employment on the grounds of ill-health capability.

Expert:  Ben Jones replied 5 years ago.
do you believe there is anything the employer can do to assist you in returning to work?
Customer: replied 5 years ago.

Taking on board the reasons for my current ill health by completing a Risk Assessment;

I feel there is acknowledgement of how stressful my role is by my employer advising it is taking more staff to complete me OM tasks - surely working with me on my rtw date (30/07/12) is more effective for the organisation than its current situation? My employer states these said staff are feeling stressed - doesn't this also acknowledge why I am ill?


This is all new to me, hence me asking your legal advise - I want to be able to rtw, if not for my current empoyer, then with another organisation. Being dismissed will not help me in the future. I have given 12 years to this organisation and after 3 months of serious ill health, they are allowed to show me no support and terminate my contract!

Expert:  Ben Jones replied 5 years ago.
Capability is one of several potentially fair reasons for dismissing an employee under the Employment Rights Act 1996. The definition of ‘capability’ encompasses 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 followed. In such cases, a tribunal will want to be satisfied that the employer had reasonable grounds to believe that the employee was incapable of performing their job. Another important consideration will be the extent to which the employer has provided necessary support and training.

It is a basic principle of fairness that a decision to dismiss or take other disciplinary action should not be taken without a formal hearing or meeting. Generally, case law has established that a dismissal on grounds of capability will not be fair unless the following key elements are present:
• Did the employer have a reasonable belief in the employee’s incompetence – it is not necessary that the employee was actually incapable, as long as the employer reasonably believes that to be the case;
• A proper investigation into the problem has taken place;
• 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 possibly 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 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.

So if you have been given a return date in the near future and the employer can make some reasonable changes to enable you to return then they would be expected to do that rather than go for dismissal straight away.

I would be grateful if you could please rate my answer and provide quick feedback. 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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