dismissed for medical incapability

toady

Hi

not sure if this is the right forum, but will try- if not, please redirect me!

I have worked in a managerial capacity for my employer for 11 years. Was fully mobile.

I went off sick in Jan 2013 and after an op was far more difficult than anticipated, struggling with rehab and mobility issues, I haven't been able to go back to work.

My GP was asked for a medical report and has stated that it is possible I might be able to return to that job but not in the near future.

Last week I was called in for a meeting and told in the circumstances they were giving me a month's notice.

I was so shocked I didn't think to ask questions. I received a letter at the weekend saying I have 5 days to appeal, but there doesn't seem much point. There is no other post to offer me that I could do now, and the building is almost impossible to adapt for me even if I was fit enough to return to work, which with daily physio still necessary, won't be for a while.

My next question is, if I am dismissed for incapability, am I entitled to any sort of redundancy-type package other than my outstanding holiday pay? I've tried to google it, but am getting contradictory answers. Am almost reconciled to the fact that the job is gone, but am not sure if I should receive any form of settlement package (none has been mentioned). (I haven't received any sick pay from them since April, that was half pay).

many thanks.

tomtontom

You should be paid for your notice period and for the accrued holidays. Otherwise, given that you doubt they could make any reasonable adjustments for you, they have done all they need to. Is there anything you can think of that would enable an earlier return?

[Deleted User]

OP are you in a union who could advise?

patanne

Have you received no SSP - you should have received 28weeks before being referred to the DWP. Doesn't really answer your question but you should get it.

jobbingmusician

You are unlikely to get a redundancy package. For the avoidance of doubt - PEOPLE are not redundant, JOBS are. There is no indication that your post is redundant, and indeed the employer is likely to recruit to replace you. You have simply been dismissed on capacity grounds.

I wonder, however, if your employer followed correct procedures. (I stress that I am not an expert.) In fact this situation pointed out to me that I was unsure whether the same rules apply to dismissal for incapacity and for disciplinary. Personnel Today seem to think they do. http://www.personneltoday.com/hr/quick-guide-to-incapacity-dismissals/

In addition, it is possible/probable that you have a disability, and in order to dismiss fairly the employer needs to demonstrate that they have considered reasonable adjustments.

I think you should appeal and ask what adjustments they have considered.

bll78

I'm afraid there's no settlement package. The fact is the job is still there and they may recruit someone to it. What they're basically saying is you're no longer capable of doing the job. You have been off work sick for 14 months so they have given you a reasonable timeframe to recover, and you have stated that it would be impossible for them to adjust the building to meet your needs. Therefore given their responsibility is to make 'reasonable' adjustments for disabled employees I doubt you'd have much recourse there.
You need to look at is there any other type of work you could do elsewhere and based upon the answer to that investigate your options in relation to benefits/job seeking.
Finally are you in a pension scheme? There is a possibility you could get ill-health retirement, however your GP suggesting that you could be fit in the future would probably rule this out, but it may be worth looking at.
It's horrid when you lose your job through your health (it's happened to me), but you also have to accept that employers can't keep posts open forever on the hope you may be able to return. Jump over to the benefits forum if you need advice on monetary support in the meantime

toady

Many thanks for all the responses above.

My SSP ran out in May 2013 so I have been on ESA since then.

I've been feeling guilty about the amount of work my absence was causing for others, and had suggested maybe they took on a temp for a year until we knew what the outcome would be; they weren't paying me any money, so no financial loss to them (I had a management position). However they decided against it. I even mentioned it at the meeting last week, but it was kind of ignored and sidetracked; blow me down if I didn't bump into a member of staff an hour later in a car park who was on annual leave; she told me they had a temp who had been coming in to do my job, so I wonder if they now want to give it to the temp on a permanent basis.

I'm not in a Union (my fault, just never got round to it) but have spoken to ACAS today who say I am entitled to a month's pay and pay for holiday leave accrued since I went sick, but not taken. Am guessing that'll cause issues with the DWP, but will cross that bridge etc!

Many thanks for the advice.

bll78

May I suggest you swat up a bit on benefits, they're complicated and the rules can come as a shock when you've never had to use them before.

Which group for ESA are you in? If you're in WRAG your contributions based ESA will only last a year, so it will end in May. Obviously there's then income based ESA. If you're in the Support Group the 12 month rule doesn't apply. It's better to be prepared than to find out at the last minute you're not eligible for anything, which may be the case if you have a partner in work and in the WRAG group.

Takeaway_Addict

toady wrote: »

Many thanks for all the responses above.

My SSP ran out in May 2013 so I have been on ESA since then.

I've been feeling guilty about the amount of work my absence was causing for others, and had suggested maybe they took on a temp for a year until we knew what the outcome would be; they weren't paying me any money, so no financial loss to them (I had a management position). However they decided against it. I even mentioned it at the meeting last week, but it was kind of ignored and sidetracked; blow me down if I didn't bump into a member of staff an hour later in a car park who was on annual leave; she told me they had a temp who had been coming in to do my job, so I wonder if they now want to give it to the temp on a permanent basis.

I'm not in a Union (my fault, just never got round to it) but have spoken to ACAS today who say I am entitled to a month's pay and pay for holiday leave accrued since I went sick, but not taken. Am guessing that'll cause issues with the DWP, but will cross that bridge etc!

Many thanks for the advice.

You are costing them financially, in holiday and in recruitment costs etc

ableandy

If you want to fight for the job then you will need a copy of the company's capability procedure, you can then check that they have followed their own rules.

Is your role the type that could be done from home? If so then that would be a reasonable adjustment.

If all is lost and you were a good employee, ask them if they would re-employ you when you are well, subject of course to them having a suitable position.

toady

There are several elements of the job which could have been done from home- but not enough to feel they wanted to go down that road.

I am currently receiving contribution based ESA in the Support Group, until October (according to the paperwork the DWP sent me) and I am on my own, no partner or dependants.