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Original poster

Termination of contract on capability grounds

21 replies

Tigertigers · 27/02/2023 15:28

My boyfriend has a physical job in a factory. He is currently off sick and on crutches due to a knee injury. The employer is telling him to come back to work when he has not recovered. They refuse to give him alternative work in the office which there is admin work available. They do this because they struggle to get people to work in the factory and don't want him leaving the factory floor.

He is stressed because he will be on Staturory Sick Pay soon which is more enough to live off. Can the employer terminate his employment on health grounds? I know he has to have exhausted the sickness route first before termination of employment. If they did terminate his contract would he be entitled to a payout?

OP posts:
RedCarsGoFaster · 27/02/2023 15:37

If he goes back in, other than office work what reasonable adjustments can they put in place while he recuperates? Is there a way for him to work on the factory floor whilst not being on his feet?

He can also ask them to refer him to Occupational Health if they have one.

Hollyhocksarenotmessy · 27/02/2023 15:42

Yes, employers can terminate due to sickness incapability. Pay out - notice period.

If his injury has led to a disability he will have more protection, in terms of reasonable adjustments such as an alternative role.

Melonportal · 27/02/2023 15:45

How long has he worked there and how long has he been off sick? When is he likely to be able to return?

Original poster
Tigertigers · 27/02/2023 16:10

Melonportal · 27/02/2023 15:45

How long has he worked there and how long has he been off sick? When is he likely to be able to return?

He has been there 20 years. Off sick for nearly 3 months. He doesn't know how long his recovery will take.

OP posts:
Quveas · 27/02/2023 16:25

Tigertigers · 27/02/2023 16:10

He has been there 20 years. Off sick for nearly 3 months. He doesn't know how long his recovery will take.

Show quote history

It doesn't make very much sense to say that they are refusing him a temporary move to the office side (and if they agreed it would be temporary only - and assuming there was work to do) because they want him on the factory floor, because he isn't at work at all so he still isn't on the factory floor. But unfortunately they don't have to provide him with alternative work and being off for this long could certainly lead to afir dismissal provided they follow a fair process. Which isn't difficult to do.

There may be an office and admin work that is done there - that isn't the same thing as them having an alternative role for him. It isn't as simple as saying he can do admin - there would actually have to be a job for him to take on.

Despite what people seem to believe, even if this did amount to a disability, there are precious few "protections" available to people.

How was he injured?

maxelly · 27/02/2023 16:40

Yes unfortunately if it is true that his injury means he will not be able to do his job within a reasonable timeframe/ever, then they are entitled to dismiss him on capability grounds, and there is no compensation other than a paid notice period plus any accrued holiday. They should look at redeployment but if there's no suitable alternative vacancy then just because he's capable of doing office work doesn't mean they have to find him (paid) office work to do.

It would be worth checking his workplace pension scheme to see if there's any medical retirement option. Also if the injury happened at/because of work whether there's any possibility of claiming any compensation. And finally that he claims all the benefits he's owed (check EntitledTo.com )

Original poster
Tigertigers · 27/02/2023 16:45

His injury happened at work but because he didn't report it at the time and he said if he reports it now they will discipline him. He has been disciplined in the past for reporting accidents late.

OP posts:
SheilaFentiman · 27/02/2023 16:47

Would the disciplinary for late reporting be as bad as his current situation?

SheilaFentiman · 27/02/2023 16:47

Also - yikes, was no one else there to see it and report it?

Original poster
Tigertigers · 27/02/2023 16:50

SheilaFentiman · 27/02/2023 16:47

Would the disciplinary for late reporting be as bad as his current situation?

He is worried it will add more to the case in their favour as he did not report it at the time. In the past when he did report accidents on time nothing was done about it and swept under the carpet. Accident claims all fell in favour of the employer. He said the employer has good lawyers. I think he works in an unsafe environment from what he has told me.

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Original poster
Tigertigers · 27/02/2023 16:53

SheilaFentiman · 27/02/2023 16:47

Also - yikes, was no one else there to see it and report it?

What happened was he went to the toilet. He saw his colleague in the training room after the toilet and went to say hello. The colleague had a cable trawling the floor for a laptop and my boyfriend did not see the cable and tripped. He said he didn't want to report ghe accident as he was supposed to go to the toilet and come straight back to the shop floor as the monitor their performance. He also doesn't want his colleague to get into trouble. I'm shocked he would risk his job just so his colleague does not get into trouble.

OP posts:
Original poster
Tigertigers · 27/02/2023 16:55

The union rep at his work has told him not to bother reporting his claims about management talking about him outside of work saying it won't get anywhere 😮

OP posts:
Gazelda · 27/02/2023 17:07

What does the union rep say about his capability and return to work?

What does the GP or medical team supporting your BF say about the timescales for recovery and ability to return to work?

SheilaFentiman · 27/02/2023 17:07

Is he looking for another job, with office work? They sound awful TBH

Original poster
Tigertigers · 27/02/2023 17:12

Gazelda · 27/02/2023 17:07

What does the union rep say about his capability and return to work?

What does the GP or medical team supporting your BF say about the timescales for recovery and ability to return to work?

The union rep just tells him you can't do this and can't do that. The union rep works in the factory too. I had to go through a union rep years ago but as we had no internal rep I had to use a union rep from the regional office.

The GP can't say and just writes sick notes as it takes 6 weeks for his MRI results to come back.

OP posts:
Original poster
Tigertigers · 27/02/2023 17:14

SheilaFentiman · 27/02/2023 17:07

Is he looking for another job, with office work? They sound awful TBH

He said previous girlfriends told him to get out and I have too which he is finally contacting agencies to see why is out there. I will help him do a CV. His confidence is low and he doesn't believe he will get much else but he is extremely talented. I have told him he has lots of skills and not to think so low of himself. The accidents and bullying at work have knocked his confidence.

OP posts:
Quveas · 27/02/2023 21:25

Tigertigers · 27/02/2023 16:53

What happened was he went to the toilet. He saw his colleague in the training room after the toilet and went to say hello. The colleague had a cable trawling the floor for a laptop and my boyfriend did not see the cable and tripped. He said he didn't want to report ghe accident as he was supposed to go to the toilet and come straight back to the shop floor as the monitor their performance. He also doesn't want his colleague to get into trouble. I'm shocked he would risk his job just so his colleague does not get into trouble.

Show quote history

It sounds like it isn't the best of places to work, but that said, it would be a simple matter to dismiss both of them if it now came out. He should have reported the accident. Failing to do so could constitute gross misconduct. And his colleague could also be dismissed for failure to adhere to health and safety / failure to report the accident. She they are both screwed if they now report it. So I suspect you are correct and job hunting might be the best option.

Original poster
Tigertigers · 28/02/2023 19:37

He contacted the head office of the union and has now got union reputation from a rep at head office. Shocking how his rep at work dismissed his case. The head office union rep said GDPR has been breached.

OP posts:
Quveas · 01/03/2023 15:55

Tigertigers · 28/02/2023 19:37

He contacted the head office of the union and has now got union reputation from a rep at head office. Shocking how his rep at work dismissed his case. The head office union rep said GDPR has been breached.

That may be true. So what? GDPR has nothing to do with whether he can be dismissed for capability for being off sick. It has nothing to do with whether he can return to work doing admin work. And if GDPR has been breached and can be proven, there is no legal remedy for him, and a report to the ICO might result in the company getting their hands smacked.

I'm not supporting the union rep in teh workplace if he hasn't done his job, but even a proven breach of GDPR is of no use in answering the question you asked. ANd if it is leverage of anything, it might be leverage for the employer to decide to get rid of a trouble maker while they have a good excuse (sickness).

fluffyfluffyfluffy · 01/03/2023 16:31

I got dismissed from my job due to ill health after a long period of sick leave. My company sick pay had ran out. My company had to pay me notice, which I think was one weeks pay for every year I had worked there...up to a maximum of 12 weeks. I think it was around £7000. That was about 5 years ago. I think that they wanted me to resign, as then they wouldn't have had to pay me the £7000. But I needed to claim universal credit and I was worried that resigning would jeopardise that, so I asked them to dismiss me due to ill health and they agreed to do that.

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