dismissed on capability grounds: ill health

lili2008

If someone has been signed off for a few weeks (over 4), gets better and returns to work, can they then be dismissed on capability grounds due to ill health?

Uncertain

We need rather more information to answer this.

How long have you been employed?

Were you fully fit or did the doctor's say on the fit note "OK to work subject to the following...."

Do you have any disability (in law)

Were any written reasons given for dismissal?

Was any payment made (in lieu of notice and / or any kind of settlement)

lili2008

She has been working there about 5 years. There is a possibility of a disability in that this is something that could last longer than 1 year although it has only been diagnosed for 4 months. The doc's note recommended a phased return over 4 weeks (although this was not agreed by the employer) and the condition is fully under control with medication.

There has been no decision to dismiss yet, just the possibility, as she has been told. Somebody has to assess the case.

Uncertain

lili2008 wrote: »

There has been no decision to dismiss yet, just the possibility, as she has been told. Somebody has to assess the case.

So at the moment she is not fit to return to her normal work, only fit to begin a phased return.

It is standard practice to warn of the possibility of dismissal when calling any formal meeting to discuss this sort of case. That doesn't meant that will necessarily be the outcome.

The firm do not have to follow the doctor's recommendations but if they don't then they must treat her as signed off sick.

A disability would require the firm to make "reasonable adjustments" but they often don't go anywhere near as far as people imagine. Without a disability (in law) they don't have to do anything to accomodate. Either she is fit to do her normal job or she is not.

lili2008

She has returned to work though, without the doctor's recommendations being implemented. I was under the impression that people could only be dismissed on these grounds if there was no prospect of a return to work and alternative roles could not be found, so I don't know why they have told her that a possible outcome could be dismissal, even if it isn't inevitable.

lili2008

I don't think she cares too much about the adjustments being implemented as she is now well. Just about the possibility of dismissal.

zzzLazyDaisy

In the circumstances that you describe in your original post - ie someone being off sick for around four weeks, making a full recovery and returning to normal duties, then it would be neither normal nor fair to dismiss for one episode of sick leave of that nature.

But as Uncertain says, your friend is not fit to return to work, and presumably at the moment the employer has been given no indication of when she might be fit to return to her normal duties? The GP's recommendations on the fit note are just that - recommendations - and the employer is under no legal obligation to comply with them.

In considering her current absence, the employer may also take into account any previous sick leave (depending on when that was).

The employer will (should) have in place procedures for dealing with sickness absence. If there is a genuine underlying condition, this will normally be dealt with differently from a series of unrelated absences. If her condition amounts to a 'disability' under the Equality Act, then other considerations apply (but do not make her bullet proof from dismissal).

The bottom line is that, if an employee is unable to carry out their duties under their contract for whatever reason - including health problems, ultimately the employer will be entitled to terminate the contract, after following proper procedures.

lili2008

I know. However she is already back at work, performing her normal duties. She was off for around 5 weeks in total and it is a one-off without other episodes of absence. It is a condition that can be controlled with the right medication and she has now got it under control. I don't think it would be normal or fair to dismiss her in those circumstances either, so we are wondering why they are even talking about it.

If the doc recommended a phased return and the employer has refused to honour it, so she in fact goes back to work full-time immediately, surely they can not classify that as still being on sick leave?

zzzLazyDaisy

lili2008 wrote: »

If the doc recommended a phased return and the employer has refused to honour it, so she in fact goes back to work full-time immediately, surely they can not classify that as still being on sick leave?

If she is now back at work, carrying out her normal duties, then no, the employer cannot class this as sick leave. Also, if they were to dismiss for that one isolated sickness absence, that would be a clear unfair dismissal.

I suspect that what has happened is that she has had a return to work interview, and she has been reminded of the company's absence policy, which might well include a warning that if she continues have time off, this could result in her dismissal. That is not the same as threatening her with dismissal for this one isolated absence.

However the above comments are pure conjecture on my part, as I don't have the full facts and can only guess what was said. I would suggest that if she is concerned, she should ask the manager who spoke to her to clarify what she was told.

lili2008

Just to be completely clear, she is working full-time at her normal job without any adjustments and has been since she returned to work a couple of weeks ago.

lili2008

zzzLazyDaisy wrote: »

If she is now back at work, carrying out her normal duties, then no, the employer cannot class this as sick leave. Also, if they were to dismiss for that one isolated sickness absence, that would be a clear unfair dismissal.

I suspect that what has happened is that she has had a return to work interview, and she has been reminded of the company's absence policy, which might well include a warning that if she continues have time off, this could result in her dismissal. That is not the same as threatening her with dismissal for this one isolated absence.

However the above comments are pure conjecture on my part, as I don't have the full facts and can only guess what was said. I would suggest that if she is concerned, she should ask the manager who spoke to her to clarify what she was told.

Thanks. No, she's been sent a letter saying her case will be assessed to see if dismissal is appropriate. It wasn't a verbal thing in a back to work interview reminding her of general policy, this is a specific referral. It does seem a bit heavy-weathered to me and I think is based on an occupational health report stating the illness may happen again. But this is pure conjecture on their part and takes no account for the fact that the condition can be, and has been, controlled medically.