Q&A Can I dismiss an employee on grounds of medical incapability?

Q:        An employee who has been with us twelve years suffered a stroke in January. Following an Occupational Health assessment in May he was pronounced fit for work provided we could make certain adjustments to accommodate his mobility issues. We complied with all the requirements but sadly he is still unable to fully perform all the duties that come with his role, which is putting pressure on other staff members. There are no other roles we can offer him, so much as it pains us to do so we feel we must ‘let him go’. Do we have grounds for medical capability dismissal?

A:        There are potentially five fair reasons for which an employer can lawfully dismiss an employee, and capability to do the job is one of them. Capability is defined as underperformance due to issues beyond an employee’s control, often a health issue. However, dismissal on capability grounds must be executed following a fair procedure as set out in the ACAS code of practice. Failure to meet those standards could result in a tribunal and a claim for unfair dismissal.

Medical Capability Dismissal can be tricky, so you would be well advised to seek legal advice specific to this employee’s situation before taking any steps.

You should document all the adjustments you have made to try and accommodate his mobility issues, along with the impact they have had on his role and the impact his limited capability has had on other team members and the business itself.

Alongside the above, you should show why there are no alternative roles you can offer this employee, or further adjustments you can make to his current role to enable him to improve his performance. If you don’t already have it, you should request professional medical advice on the employee’s condition, and an occupational health assessment.

This question has been answered by James Denton, a Solicitor with GHP Legal.  If you would like to speak to someone about this or any other legal matter, please visit our website www.ghplegal.com and use the contact us form, or call us on: Wrexham 01978 291456, Llangollen 01978 860313, Oswestry 01691 659194