Capability review

dori2o

My dad has received a letter from his employer, they have received the medical report his doctor has sent regarding his capability for work. The report states that there is no possibility of returning to his trade as a plumbing and heating engineer.

The employer states in the letter that a meeting has been arranged for 29/10/10- thats not a problem.

The letter advises they want to discuss the medical report, and possible jobs my dad could do within the company, and his capability for work.

It then says he can have anybody from the company to sit in with him. Now, the only problem with that is that none of the employees are willing to do this as they all fear for their jobs by siding against the employer. Can my Dad take somebody from outside the company with him?

The letter then says, under the companies disciplinary proceedure it may be necessary to dismiss you from your position.

Is this righht, I know he can be dismissed on capability grounds, with notice pay, accrued holiday pay etc, but it's not a disciplinary issue is it?

I have a feeling the employer is going to try and get out of his obligations topay my dad what he is due by dismissing him for something other than capability, this is another reason my Dad wants somebody to accompany him that is not in any way attached to the company.

Any help would be appreciated.

DVardysShadow

You are right, it is not a disciplinary issue. It is probably ignorance on the part of the employer - and if he was dismissed under a gross misconduct, I suppose he could get it ruled unfair by and Employment Tribunal. But if this is possible, there might not be a lot to be gained - he would probably be put back in the position of being dismissed on capability grounds.

dori2o

DVardysShadow wrote: »

You are right, it is not a disciplinary issue. It is probably ignorance on the part of the employer - and if he was dismissed under a gross misconduct, I suppose he could get it ruled unfair by and Employment Tribunal. But if this is possible, there might not be a lot to be gained - he would probably be put back in the position of being dismissed on capability grounds.

My Dad fully agrees with being dismissed on capability grounds, there is no way he can go back into his old job,and there is no other position within the comapny.

However, if the employer somehow finds that he can dismiss my Dad on Gross misconduct, then wouldn't my Dad lose his rights to notice and accrued holiday pay

SarEl

You are probably (unless there is some form of misconduct being alleged) worrying needlessly. The "disciplinary process" is the same thing as a "capability process" etc etc and subject to legal review in the same way. Capability dismissals are "some other substantial reason" under the potentially fair reasons for dismissal. Some employers separate out the processes and call them different things - but that doesn't make them different things!

The law only allows a worker to be accompanied by a work colleague or union rep - you can ask for someone else but the employer doesn't have to agree.

dori2o

SarEl wrote: »

You are probably (unless there is some form of misconduct being alleged) worrying needlessly. The "disciplinary process" is the same thing as a "capability process" etc etc and subject to legal review in the same way. Capability dismissals are "some other substantial reason" under the potentially fair reasons for dismissal. Some employers separate out the processes and call them different things - but that doesn't make them different things!

The law only allows a worker to be accompanied by a work colleague or union rep - you can ask for someone else but the employer doesn't have to agree.

Can you please confirm then that we have it right, once the employer has determined that there is no capability for return to work and my Dad is dismissed,that he should receive payment for his accrued holiday pay (less tax and NI of course) and payment in lieu of Notice (1 week for every year paid with no tax deduction as no PILON in contract).

SarEl

dori2o wrote: »

Can you please confirm then that we have it right, once the employer has determined that there is no capability for return to work and my Dad is dismissed,that he should receive payment for his accrued holiday pay (less tax and NI of course) and payment in lieu of Notice (1 week for every year paid with no tax deduction as no PILON in contract).

Not entirely correct. Any PILON paid is not necessarily "with no tax deduction" (i.e. gross salary). PILON is a tax free allowance (if there is no contractual entitlement, which you say is the case). THis means that it is not counted as taxable income. But many employers pay it as a net salary amount - so you get in your pocket what you would have had otherwise. This aspect is negotiable (below £30k) so it is between your and the employer.

dori2o

SarEl wrote: »

Not entirely correct. Any PILON paid is not necessarily "with no tax deduction" (i.e. gross salary). PILON is a tax free allowance (if there is no contractual entitlement, which you say is the case). THis means that it is not counted as taxable income. But many employers pay it as a net salary amount - so you get in your pocket what you would have had otherwise. This aspect is negotiable (below £30k) so it is between your and the employer.

OK thanks, but the bit about being paid (either with our without tax deduction) for the notice period is correct?

SarEl

Well - technically he isn't being paid for the notice period That is what PILON is! Going back to your first post I notice that PILON wasn't mentioned. You are aware that the employer doesn't have to pay PILON at all? Are you assuming that they will, or do you know that they will?

If your dad remains off sick and his notice period is the statutory notice period, or no more than one week more than that, then he is entitled to be paid for his notice period at his normal wage. That means that he would be paid as normal - see here http://www.xperthr.co.uk/blogs/employment-intelligence/2008/11/dismissing-employees-on-longte.html

If the employer pays PILON he gets no notice pay, but an amount equal to his notice pay - which may be gross or net, but is often net. Depends how generous the employer is feeling.

Uncertain

SarEl wrote: »

The law only allows a worker to be accompanied by a work colleague or union rep - you can ask for someone else but the employer doesn't have to agree.

Note this can be ANY accredited trade union rep of his choice who is willing to go. He doesn't have to be a member of that union nor does the rep have to be acting on the union's behalf. He or she simply has to hold the "qualification". Perhaps some friend or relative is such a person? The employer cannot legally refuse.