Dismissal due to capability........ Advice needed!

[Beelliesebub]

I have been employed be a very large company for near enough five years as a customer service advisor. Unfortunately for the last three years I've been off sick due to arthritis. During this time I have been given incapacity benefit and disability living allowance with full mobility as my condition is quite bad and to be honest I was made fully aware by my doctor that it was very unlikely I would be able to return to work. Recently, my employer sent me to see an occupational health assessor and he told me they had three options 1) find something suitable for me to do, which they cannot do as there is no job they could give me that won't affect me. 2) Medically retire me, or 3) Dismissal due to capability.
Well today my team leader called me as she has received a report from the assessor and told me that I had two choices, resign or get dismissed due to capability
I've looked it up on the net and to be honest I'd like to know what I'm letting myself in for, whether it would be better to resign and also what I am entitled to either way.

Hello - I am not an expert however this does not seem right to me - its almost discrimination. I suggest you contact a solicitor/lawyer where I believe you can get an hours advice for free/v low fee and they can advise your basic rights. Please don't assume the company is following the law - sometimes they do know the rules themselves. Good luck.

some info on the Disability Discrimination act here

hang on tho - still looking for something more readable

All depends on wording of Company policy so you need to find that out. If there is no 'suitable' alternative employment they are within their rights to dismiss due to ill health however it could potentially be an unfair dismissal.
I would expect them to explore all avenues regarding redeployment, obtain full occupational health input and gather information from your GP/Specialist regarding prognosis, what you can/cannot do etc.

whatever you do, DON'T RESIGN.

Use ACAS 08457 474747 or the Disability Rights Commission website/helpline - fantastic resource. To qualify as disabled under the DDA it has to last a year or more, and have a significant adverse affect on your day to day activities under a number of headings such as manual dexterity etc. If they follow correct and fair processes and you don't suffer a detriment you would be unlikely to have a claim for disability discrimination

Sorry, have you actually been off sick for the whole past 3 years? I can't believe they haven't dealt with it before. Usually to get full medical retirement, you have to be unable to work at all, for anyone in any capacity - again check the wording of the policy

Don't resign.

They can fairly dismiss you for capability if they have made every reasonable effort to adjust your job to enable you to do it or try to find you something else to do.

In our pension scheme, one would only qualify for an ill health retirement if the employee would never, ever work again in any capacity. If it is likely that a recovery would be made, then it is usual to dismiss for incapability.

What sort of work do you think you can do? What is it about your athritis that prevents you from working?

Yes, they can dismiss you due to your capability if they have exhausted every other option that could be open to them to get you back to work (ie. different job, reduced hours, providing support to enable you to do your job) If they have done this and you have been assessed as you say you have, they are completely within their rights to dismiss (giving you the required notice or paying you in lieu of notice). You would usually need to attend a formal hearing with a senior manager for this to happen - sounds serious but it's just formality. At the hearing they should go through every thing that has happened over the past 3 years and the situation as it stands now.

Tbh, 3 years is a very long time to be off sick and for them to get to this stage.

In my company, we would also meet with the employee to offer them to option to resign or be dismissed (as sometimes it is in the employees benefit to resign) but usually dismissal is the better option for you.

I have been on mat leave for over a year so would advise you to see Citizens Advice or Acas for your full entitlements in either situation.

Hi guy's....sorry about the delay in replying, dh has just finished work for christmas and on went his pc game ..
Anyway, thanks for all your swift replies and in answer to them, here go's......

Yes, it was actually three years in October and to be honest the company literally just forgot about me imho, in fact I wasn't aware that I was still employed by them as they had no contact with me for over a year and then suddenly in September I had a flurry of emails and phone calls basically because they realised that I was still employed by them.

They are unable to give me another job as I am unable to type at any speed or for any length of time because of the pain and stiffness in my hands and likewise I am unable to sit or stand for any length of time as I seize up and unfortunately you need to do all of the above to work in a call centre.

And I promise I won't resign...