If you refuse adjustments, can they still dismiss you for capability?

bluefox

If you refuse reasonable adjustments, can they still dismiss you for capability and that would lead to a payout for this?

I am really confused as to what exactly my employer is doing. As I stated today I wouldn’t be returning but yet are seeking to find out what adjustments I would need. 

janer1967

Not all companies make a payout for capability 

If they go through oh and they find reasonable adjustments suitable for you and you don't try them then this could result in you resigning from the company 

They wouldn't be dismissing as they would have offered suitable role buf you refusing means you are not accepting the role and in principle ending your contract 

Get expert advice from your union or acas 

bluefox

Ah so they are trying to avoid a payout then?

That’s a very crafty move I think. 

Karen7788

My employers have made reasonable adjustments for me and they’ve all been very helpful.

bluefox

The only trouble is I find it hard to leave the house!

So I’m not sure reasonably what is going to work. 

I can’t do nights because of my mental health and the chronic pain and seizures I have. 

I can’t do days because I have panic disorder and social anxiety and I’m not good with crowds of people or face to face interactions on a consistent basis. 

I can tell my occupational health this but if they then give me “reasonable adjustments” 

why would I not be dismissed for capability?

I am not mentally capable of performing either of those duties and I can’t understand why my employer has done this, other than perhaps to avoid a potential payout. 

Read this here too:

Dismissals and redundancy

Your employer cannot dismiss you just because you’ve become disabled.

You can be dismissed if your disability means you cannot do your job even with reasonable adjustments.

You cannot be selected for redundancy just because you’re disabled.

janer1967

 No they are not trying to avoid payment they are trying to see if there is anyway to keep you employed 

Your employers have been very fair to you keeping you employed while.off sick for a long period offering reasonable adjustments in the past 

Lots of employers would have dismissed way before now with no compensation payment 

Thank your lucky stars on this one 

janer1967

I'm well aware of the law around employment if you read that statement you posted it states you CAN be dismissed if you have a disability and can't do your job even with reasonable adjustments 

Thats why they are doing things properly ensuring there are no reasonable adjustments they can make.

Unfortunately being disabled does mean you can no longer do your job an extreme example but j6st to demonstrate someone is a window cleaner or roofer and uses a ladder and works high up and they lose both legs in an accident no amount of reasonable adjustments could allow.them to return to work 

Just tell the oh how things are for you and take it from there It is quite possible they will say no suitable adjustments and dismissal is the only option 

bluefox

janer1967 said:

 No they are not trying to avoid payment they are trying to see if there is anyway to keep you employed 

Your employers have been very fair to you keeping you employed while.off sick for a long period offering reasonable adjustments in the past 

Lots of employers would have dismissed way before now with no compensation payment 

Thank your lucky stars on this one 

I appreciate they have kept my job open but they have also acted unreasonably at times and had to apologise on many occasions. 

With that said, today I said I don’t feel in myself that I’m feasibly ready to return. I am due all of my therapy in the next few months and that is what I’m banking on to make me better. 

I’ll consider whether any adjustments may aid me in returning earlier than expected but it’s not something I can guarantee as I’m a total and utter mess. They’ve seen my arm and the damage I’ve done. 

I think their policy is to pay on a capability dismissal but I’m not sure if that happens with adjustments or not. They were prepared to do it today. 

janer1967

If the decision is no adjustments can be made they will dismiss 

If they can accommodate adjustments that you are able to do then they will put them in place 

They will keep consulting with you hopefully 

From what you say it indicates you don't think there is any role you can do even with adjustments at this time 

What exactly would you want the outcome to be as its confusing sometimes you post about fear of not being able to work in future then others giving impression your not able to work 

As lots of us have advised get yourself better b4 considering going to work 

bluefox

I’m not sure. It’s difficult for me janer. I worked for nearly two decades and having mental and physical health problems. 

I’m finding it tough giving my job up but accepting that now it’s probably the right thing to do. 

I probably do need alternative work when I’m ready in the future. But I’m just baffled by the decision to send me to OH when I know I’m not really ready so I’ll be telling them anyway. 

But obviously I’m concerned because today I was offered a payout to leave the business. 

janer1967

It is most likely in the company policy and procedures to follow that process as that is best practice as advised by acas 

If they offered today a payout why did you not take it or ask if you could have time to consider it 

You could if you decide not to go through the oh process then contact them and say you are now willing after thinking about it to take the offer 

If you know yourself you are not going to be able to work and all you atd doing is trying to convince the oh you can't work then what is the point of that

Don't put yourself under more stress you will have sense of relief when you no longer have work to think about and can concentrate on your recovery 

I know it's hard to accept I had very successful career for 35 years b4 having to stop working due to disability 

bluefox

janer1967 said:

It is most likely in the company policy and procedures to follow that process as that is best practice as advised by acas 

If they offered today a payout why did you not take it or ask if you could have time to consider it 

You could if you decide not to go through the oh process then contact them and say you are now willing after thinking about it to take the offer 

If you know yourself you are not going to be able to work and all you atd doing is trying to convince the oh you can't work then what is the point of that

Don't put yourself under more stress you will have sense of relief when you no longer have work to think about and can concentrate on your recovery 

I know it's hard to accept I had very successful career for 35 years b4 having to stop working due to disability 

They were demanding on the spot answers and then came into the meeting after an adjournment which then resulted in them offering me six more weeks to “get better” and follow OH advice. 

I agree with you. I think it’s going to be more stress and almost going to be intolerable if I then find I won’t be getting a capability dismissal after the years of service I have accrued and expected to resign. 

I did tell them that my recovery is dependant on all of my appointments which are going to be ongoing until at least January 2023. 

It’s a terrible mess and I will seek some guidance myself from ACAS tomorrow as I did tell my employer after they asked me the question, are these meetings causing you stress to which I duly replied ‘yes’ they’re setting off my IBS and acid reflux nevermind the mental health side of things. 

bluefox

I’ve been told by my Union Rep that this is standard procedure before a capability dismissal. To ensure they have exhausted all avenues. 

My only concern is that if my employer is doing this as a defensive stance. What happens if OH declare me fit for work? When clearly my GP doesn’t think I’m fit for work. 

And where do I stand with all this? I’m not leaving the house, I’m having seizures in my house and I’m self harming. I don’t understand what we are going to gain from an Occupational Health report at this stage but it would now seem unreasonable for me to refuse this. 

janer1967

I agree with the union rep as I also said in one of my comments

They have to follow the company procedure in order to dismiss and the oh referral will be part of the procedure 

It's unlikely oh will say you are fit for work they are not a gp they look at your condition and how it would impact on you in the workplace which your gp will have no idea the tasks involved in your work 

When gp says you are unfit for work this is advisory only and a generalised opinion 

Personally I think you are making a lot more of this and worrying unnecessarily I know that's part of your condition 

As I've said before say how it is to oh they will discuss what they are recommending with you before reporting 

Your company is doing what is right and best practice and not acting in anyway outside employment law and are treating you fairly 

Like other threads going round in circles here so nothing more to add 

bluefox

Just want to say. 

Thank you for your advice and comments, janer. 

Your input has been much appreciated here. 

L_Volunteer

Glad we were able to help you @bluefox. It is the very least you deserve. If you need anything else, please don't hesitate to let us know. We are all here for you 

janer1967

Your welcome @bluefox let us know the outcome