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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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hi i have been employed for the last 7 years by my current

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hi i have been employed for the last 7 years by my current employer. unfortunately over the last 2 years i have had problems with my right knee which has resulted in me having to take sick leave on a number of occasions as I've been unable to do my job, i have seen my GP on several occasions, had a course of physiotherapy which did not improve my condition. i have since had an operation to trim my cartilage and clean my knee. i have been told that i have osteo-arthritis. since the operation i returned to work only for my knee to again swell and give me problems. my manager at work told me that because of the nature of my job i could not remain at work and had to revert back to sick leave. at a recent sickness support meeting, it was indicated that the company were of the opinion that i would never be able to do my current work duties due to this problem and taking early retirement was mentioned. i am 62 years old and still having appointments at the hospital for my knee. can the company make me take early retirement and if so what benefits am i entitled to from the company and from anywhere else? thanks.

Ben Jones : Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. Is there an early retirement benefits scheme at your work?

i do not know of an early retirement benefits scheme, my company pension was paid to me when i reached 60 years old, i received a lump sum and receive a monthly pension.


are you still there Ben

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.

Ben Jones :

The starting point is that 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. This means that if you are no longer capable of performing your job your employer can consider legally terminating your employment.


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 inability to perform their job;

  • 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. In these circumstances the employer has to try and make reasonable adjustments to help the employee, for example allowing them to move jobs, remove some of their duties, allow flexible working hours, etc. However, if none would help with the employee's return to work then termination could be the only option.


Case law has suggested that if there is an early retirement benefits scheme, for example where an insurance cover exists that would entitle you to some payments in the event of early retirement, the employer should consider going down that route instead of dismissing on grounds of capability. However, if no such scheme exists they can decide whether to retire you early or simply dismiss on grounds of capability.


When it comes to benefits, if such a scheme exists you could be entitled to whatever your entitlement under the policy is - ask your employer to see if such a scheme exists. If there is no such scheme then they would not owe you anything apart from to give you your contractual notice period and pay you for any accrued holidays. They do not have to make any extra payments.


You may be entitled to state benefits but these will depend on your personal circumstances so to get a proper idea of what you may receive I suggest you take this benefits questionnaire and at the end your potential entitlements will be revealed.

Ben Jones :

Sorry the link may not work, I will try again

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