ET following dismissal after TIA on capability due to failure to adhere to contract

[Lorri-Croft]

Hi,
I'm looking for advice regarding a situation my husband is in.

He was employed for a large maintenance company as a maintenance engineer with plumbing bias for 4 years on a 2 day, 2 night 4 day off rolling shift. He did this until March 23. He started to get bad headaches for a period leading to a TIA which affected his sight .He sought medical advice via his company medical insurance. After 3 months sick his sight had returned sufficiently to return to work. However, his doctor and Occupational health advised he was at increased risk of a further TIA if he continued working nights so was put on day shifts, although they wanted him to return to nights. December 23 he was TUPE'd over to the new company that had won the contract.

From Jan 24 they started to have regular 'welfare meetings' with him to ascertain the possibility of working nights again which he declined to do due to the increased risk. This went on for a number of months. They said he could not permanently work days so encouraged him to look for an external job. They only came up with one job within the company which was 2.5 hours travel from home each way which was not practical.
They were threatening to dismiss him so he contacted ACAS who advised his TIA was a disability so they should make reasonable accommodations.

Roll on a few more months and he has been working days all this time with no headaches. They acknowledged their responsibility to accommodate due to his disability but advised due to financial and operational impact they could not continue with him working day shifts indefinitely.

He is proceeding for unfair discrimination due to disability and unfair dismissal, firstly trying unsuccessfully to negotiate a settlement via ACAS, as he was terminated in October on 'capability-unable to fulfil his contractual obligations' (ie. returning to nights). He has now instigated tribunal proceedings.

I thought capability was ability to do a job to a satisfactory level for which you were employed? He has been working day shifts for almost 18 months, has never been pulled up on ability, 2x OH reports (he requested a new one via the new company) say he is perfectly capable of doing his job.

The disability reason for not returning to nights seems to have been side-lined and the reason to terminate used is now 'capability-unable to fulfil his contractual obligations'.
As a note, capability was not mentioned until his termination letter, notes in the termination letter and his appeal letter (declined to reinstate). Unable to fulfil his contractual obligations as unable to return to nights was only mentioned in the appeal response.

Does anyone know whether they can just ignore the disability aspect and substitute a different reason for termination legitimately? I can't find anything online that says 'unable to fulfil your contractual obligations is even a capability issue.

I'd be grateful for any guidance.

[Lorri-Croft]

Is there anyone who could answer my question/shed some light on the matter?

[ULA]

I am not sure if you are aware that all of us advising are volunteers and do not necessarily log onto the forum every day, hence the delay in my responding to your initial post.


A capability dismissal refers to an employer terminating an employment contract on the basis of an employee's underperformance which can be due to ill-health. If underperformance is a capability issue, resulting from disability, the employer should consider if there are any measures they can take to support or address the causes, effectively reasonable adjustments, before going down a capability dismissal route.

Your husband's employer should not have ignored there being a disability issue in his ability to be capable of performing his contractual obligations i.e. working nights on a shift pattern. They should have explored all possible alternatives such as a continuation of his working days only, which had been in place for 18 months and considering advice from OH and his GP. Removing such an adjustment may well be consider discriminatory which I presume is part of the claim being made.

In answer to the question in your post, your employer is using correct terminology to state that his dismissal was due to a capability issue as it is related to ill health and his ability to fulfil his contract. However, the process they followed to reach this conclusion will come under scrutiny by the ET in terms of considering their actions, whether they were discriminatory, whether they followed a reasonable process in coming to the decision to dismiss and ultimately whether the dismissal was unfair.