Grounds for Dismissal

Jayn Bond - Workplace Law Network
Online advisor - 87 posts

Hi Stephen
I regret to say that employment law is not an exact science and the key is in the word 'reasonable'. You are right to seek medical advice and ask what adjustments can be recommended. It is then up to you as the employer to decide what is reasonable to implement in your situation. The adjustments are meant to enable the employee to carry out their full duties or adjusted duties that have been agreed as making up a complete job. So for instance, if a worker cannot carry out heavy lifting and this is only a small part of his job, then a reasonable adjustment would be to make sure someone else does the heavy lifting when it becomes necessary. If reducing the responsibilities results in there only being a part time job, then the reasonable adjustment may be that the person is allowed to change to a part time role. However the money is also adjusted to pro rata. The adjustment is in allowing the person to continue in a part time role, not paying someone full time when they are only working part time.
The best test for you is to say - if you invited 3 complete strnagers to a meeting, could you explain to them why you could not make the adjustments and why dismissal was the only option? That is the equivalent of being in front of an Employment Tribunal Panel.
Hope this helps

Tony Williams
Member - 19 posts

Stephen

It is important to differentiate between situations where an employee is at significant risk of long-term harm if they continue doing their job, and situations where they may get symptoms such as pain or tiredness but no significant harm.

In the former there may be a duty of care to stop them doing certain activities at work. In the latter, it may help them to adjust their work, but it is not absolutely essential. In most cases where doctors recommend adjustment to duties it is to help avoid unpleasant symptoms rather than absolutely necessary to avoid significant harm.

If you are considering terminating a contract on the basis of medical advice, a reasonable adjustment could be to allow the employee to continue working in spite of symptoms (see Withers v Perry Chain Co ltd). This only applies if the employee wants to continue working in the role, but you should consider it before terminating a contract on capability grounds.

I have seen many employees who were quite happy to have sick leave or adjusted duties until they realised their job was at risk. On balance they chose to keep the job and put up with the symptoms.

Andrew Auty
Member - 10 posts

Delighted to see reported, the important difference between 'feels worse' and 'actually worse'. The distinction is a central tennet of civil and statute law, but is usually completely ignored by commentators. The better advised advocates quickly spot the difference and guide the "victim" away from a tendency to medicalise their problems. It may not be in their best interests.

Our system of rights tends to require a degree of medicalisation (diagnosis, prognosis and capability assessment for example). Is a rights based approach the most reasonable one to kick off with?

James Fairchild
Member - 257 posts

Tony, a very informative post.

Only thing I would add is not to rely on copies of notes provided by a General Practitioner. You need the support of an experience occupational health advisor, who can advise based on YOUR COMPANIES requirements, and not what the patient has requested they write.

Colin England
Member - 55 posts

May I make a small point in response to jayne,s posting, please? jayne says So for instance, if a worker cannot carry out heavy lifting and this is only a small part of his job, then a reasonable adjustment would be to make sure someone else does the heavy lifting when it becomes necessary. The problem with this may be that the employee feels under some pressure to lift the items, he thereby causes himself significant health problems or injury and has a case for compensation. The employeer is always under a duty (health and safety etc) to ensure that the employees are not put at risk during their work and in such a case has manifestly failed in that duty.

How about trying to find some other sort of job for the man - light duties - ? It may become necessary for the employer to show that he has taken all reasonable steps to understand the ma\n's position, problems and alternative employent and that the employer has not acted without full consideration for the man.

I like Jayne's last paragraph.

Carole Simmons
Member - 53 posts

Tony, Andrew and James, What do you do howeverif the employee wants to continue in the position but the OHA is advising that it is not in the employees best interest to continue? Here we have the oppersite happening.

So if you go through the motions of trying to find an alternative role - how long do you give that process- then you threaten dismissal, the employee could insist in going back to their job but the company has a duty of care, so if you allow it and the employee ends up making their condition worse where do you stand then?

Tony Williams
Member - 19 posts

Carole

As with any legal issue, you need to consider the evidence. Where the evidence is expert opinion, you need to consider whether this opinion appears to be appropriate and rational. If so, you would be unwise to ignore it, and case law (Jones v Post Office Ltd) would support you if you followed the expert advice that you had.

If the employee wishes to continue working against expert evidence, he should be expected to provide an alternative expert opinion that supports his case. If he cannot do so, then go with the expert advice you have.

If you have two opposing 'expert opinions' and neither is from a consultant occupational physician, I would recommend you seek advice from one, providing both reports to him and making it clear that you need a definitive answer.

Andrew Auty
Member - 10 posts

Carole

Just on one aspect...personal injury.

It is not clear what "not in the employees best interest" actually means in your scenario. If we assume it means that work would lead to a deterioration in health (i.e. and injury) then, if the advisor is qualified to say this, the injury should be regarded as probably foreseeable and liability for the loss would be with the employer. A decision to continue employment would be best taken after consultation with your EL insurer. They would probably advise against continuation or, would offer to sell you a rehabilitation service.

The OHA advisor should be asked to specify exactly what kind of work it is that is pathogenic, and if possible, the degree to which this may be undertaken without risk of injury. It is usually possible to identify such information without actually divulging the nature of the medical condition or breaching medical ethics.

It would help, if the OHA advisor could also say for how long the risk associated with work would be significant.

A more difficult question would be to ask the OHA advisor what harm would be done if work ceased. Who has a duty to who? With all the initiatives on getting people off sickness benefits and back to work, this question is likely to come up quite often.