An employee, who was signed off work due to stress and depression, was dismissed on capability grounds after 10 years’ employment. Martin Brewer and Esther Smith advise if this was fair.
Martin Brewer, partner, Mills & Reeve
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Esther Smith, partner, Thomas Eggar
An employer can validly and fairly terminate an employee’s contract of employment on the grounds of capability (i.e. their lack of capability to perform their contractual duties due to on going ill health). However in order for such a dismissal to be fair, the employer needs to have consulted with the employee about the proposed dismissal and also to have based their decision to dismiss on up to date medical information.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.