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Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
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Hi I am having major problems with my work; have been off sick

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Hi I am having major problems with my work; have been off sick for a long time this year., dr still keeps signing me off and wont sign me back on, and my employer is now advertising my I have been trying to go to work, and having all sorts of difficulties as I dont eat or sleep at the moment and can hardly function, but if I go off sick again that will risk my employment even more, they are advertising it as full time permanent, am I about to lose my job? I cannot even afford to live on sick pay, let alone no pay....

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.

Ben Jones :

Before proceeding please note that as I am a practising solicitor, I am often in and out of meetings, travelling between clients or even at court when I pick your question up. This may even occur at weekends. Therefore, I apologise in advance but there may be a delay in getting back to you and providing my advice. Please be patient and I will respond as soon as I can. You do not have to wait here and you will receive an email when I have responded. For now please let me know how long you have worked there?


I have worked there for about four years now.

Ben Jones :

Many thanks for your patience. The employer should not be advertising your job behind your back, this could be a serious breach of trust and confidence on their part. If you are off sick and are likely to remain off sick then the employer will have certain duties and they should initially be aimed at helping you, before they even consider dismissing you.


In terms of a potential dismissal, 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.


but they have not dismissed me yet, its just that I have found my job advertised. I was having advice from a community psychiatric nurse and social worker but when my condition deteriorated I lost contact with them, and I am not incapable of doing my job when I am well, its just that I have been unwell and going through changes in medication for most of this year. I dont want to wait to be dismissed, as then it will be too late to save my job will it not ? My condition has lasted for 3 years now, but is sometimes more under control than others, and I was even working for them from my hospital bed when I could in February to ensure my students passed their exams. They already got me to sign a document allowing them permission to contact my consultant about my condition, and were holding regular meetings with my nurse. My nurse told me that they couldnt sack me when Im on sick leave, but now im not so sure? Its so stupid, as my condition is made worse by all of these work things, which then make it even harder to do my job. I have been going to work even though I am signed off currently, as the GP refuses to give me a fit note, and I am so worried about losing job

Ben Jones :

I know they have not dismissed you but what I have discussed above is in the event that this happens, because it is certainly an option the employer can take so you need to be prepared. It is not correct to say that you cannot be dismissed whilst on sick leave, there is no such law, but if they do decide then they need to satisfy the factors I discussed above. Whilst I understand that you can do your job when you are well, you have not been for some time and it is unclear when that situation may improve so as far as the employer is concerned you are currently not capable of performing your job.


No im not capable at the moment, because I cannot eat, or sleep., or in fact do much else, so that is all it takes? To be incapable whilst sick? I have done what they have asked me to do since going back to work, they have reduced my timetable and I have been going in and teaching the students most of the time, with a few days off but not a lot (have only been back two weeks). Would it have anything to do with being sectioned?

Ben Jones :

no it is not just that, please see my earlier comments, there has to be a genuine belief that you won't be capable of performing your job for a prolonged period or indefinitely. The employer has to try and help you but in the end they run a business and they need to look after it as well and if someone cannot do their job then the law does allow them to dismiss them as long as it is done fairly


ok, well its an independant school, run by the exclusive brethren, so is not under the council. There is no occupational health department or anything, and they have no access to supply teachers, so maybe thats why. I cannot afford living on sick pay - it does not even cover my rent, so am going to have further problems living on no pay. Most of the time I was off recently was the 7 weeks that everyone else was off too, so it makes it seem longer. And they do know from the past that I have been able to go back to work after therapy. I was off for most of the year 3 years ago after my boyfriend died, then I managed to go back for nearly an entire year, until this year. I was working full time until christmas.


thanks for the information anyway.

Ben Jones :

You can also remind them that if you are disabled they have a duty to make reasonable adjustments. What amounts to ‘reasonable adjustments’ can have a wide interpretation and often depends on the individual circumstances. Below are some examples of what could amount to a reasonable adjustment:

  • making adjustments to work premises;

  • allocating some of the employee’s duties to others;

  • transferring the employee to fill an existing suitable vacancy;

  • altering the employee’s hours of work;

  • allowing the employee to be absent during working hours for rehabilitation, assessment or treatment connected to their disability;

  • acquiring or modifying specialist equipment;

  • providing supervision or other support.


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

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