Capability

zipideedooda

Sorry if this in the wrong section. Long time lurker and avid reader of these forums, and now i need some advice and information.
I have been off work with Depression and Anxiety for the past 9 month, with another fit note provided until the end of September. I don't think this situation will change in the next 6 or so month. I have worked for the same company since 2002. I have had 1 OH appointment, and 2 HR appointments, with another OH appointment in the next 6 weeks or so. In the first OH appointment report, it stated that Disability legislation applies
. I have received a copy of all OH and HR transcripts. The company have done everything expected, and within rules and timeframes. They have offered me to return on a part time basis, which i have refused, due to anxiety about going out etc.
If they decide to go down the capability route, am I correct in thinking they should make me redundant, with a payout of the 12 weeks contracted notice, and the amount of holiday entitlement accrued for this year?
At the current time, the only income i have coming in is UC, at around £720 per month. I have applied for PIP, and awaiting an assesment.
Thank you for your time, and any replies received.

Undervalued

zipideedooda said:

Sorry if this in the wrong section. Long time lurker and avid reader of these forums, and now i need some advice and information.
I have been off work with Depression and Anxiety for the past 9 month, with another fit note provided until the end of September. I don't think this situation will change in the next 6 or so month. I have worked for the same company since 2002. I have had 1 OH appointment, and 2 HR appointments, with another OH appointment in the next 6 weeks or so. In the first OH appointment report, it stated that Disability legislation applies
. I have received a copy of all OH and HR transcripts. The company have done everything expected, and within rules and timeframes. They have offered me to return on a part time basis, which i have refused, due to anxiety about going out etc.
If they decide to go down the capability route, am I correct in thinking they should make me redundant, with a payout of the 12 weeks contracted notice, and the amount of holiday entitlement accrued for this year?
At the current time, the only income i have coming in is UC, at around £720 per month. I have applied for PIP, and awaiting an assesment.
Thank you for your time, and any replies received.

No. This is not a redundancy situation. Redundancy is if the job no longer needs doing.

You are however correct in saying that you are entitled to your full contractual notice and all accrued holiday. You may possible be able to negotiate some kind of payout in exchange for signing a settlement agreement. Basically you would sign away (as far as the law allows) any possible claim you may have against the employer in exchange for, usually, an agreed reference and some money. The employer is not obliged to do this but some will, either as a gesture of goodwill or just to avoid the possibility of having to defend any claim.

I am surprised to see you say "it stated that Disability legislation applies". Depression and Anxiety can, under some circumstances, amount to a disability (for employment law purposes) generally it does not unless very long lasting or experienced along with other specifically diagnosed physical or mental conditions.

Have you taken any legal advice? 

zipideedooda

Thank you for your reply. No, I haven't taken any legal advice yet.
The OH assessor put in his report regarding the Disability Legislation, as this has been the 3rd time i have been off work since 2019, totalling 16 month. 
Being honest, I would settle for Capability Dismissal, as I cannot see me being fit for work for at least the next 6 month or so.
I will have a look for what a settlement agreement entails, and take it from there regarding legal advice.

Brie

It may be worthwhile considering whether having an off the record meeting would be suitable.  This article discusses it from the employers point of view which may be of some help.

How to hold a pre-termination/without prejudice meeting (shoosmiths.co.uk)