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11/10/2011 21:55:56 mjfairman Posts: 1	My daughter was in a car accident approx. 2 years ago where she sustained a lower back injury, since the accident she has been on risk assessment at her place of work. She works at a school for severely disabled children and young adults ranging from 3yrs old to 18yr olds which involves manual handling young people in and out of their wheelchairs and equipment continuously all day, hoists are used so there is no physical lifting but there is a lot of supporting, pulling, pushing and bending over the wheelchairs to position slings. On the risk assessment there is a list of a handful of young people that my daughter has said puts more strain on her back than others so she does not assist them eg - overly large or unpredictable spasmodic body movements. Her work place has said that the aim is to have her fully fit and working by christmas 2011, her physiotherapist doesn't think this is likely and thinks that she may not fully recover and will probably have to be careful with what she does for the rest of her life. Can her work place sack/dismiss her on the account of her not being able to complete her duties in full? and if so, can she claim benefits straight away as she has a young child to support?
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12/10/2011 21:56:41 www.clicklegalservices.co.uk Administrator Posts: 374	Capability - or incapability is a potentially fair reason to dismiss. However there has to be a fair procedure. I think it would also turn on the extent of the duties that cannot be done, and indeed whether the injury amounts to a disability within the meaning of the Equality Act (formerly as is relevant here, to the Disability Discrimination Act). The issue then is whether reasonable adjustments could be made etc. - by giving certain duties to another say. A side issue as well would be whether the longer term illness/injury was potentially "claimable" within any possible road traffic accident claim. That, in turn of course turns on whether your daughter was not a fault in that matter. If she was not, and the injury was sufficiently serious (your description tends to suggest it is) then, her "handicap" and potential disadvantage on the open labour market (if she was to ever lose her job) should be compensated. She has 3 years to claim (a much maligned term lately) and she should seek advice as to her position. In short however, how the accident is caused (in or out of work) does not matter, if she is incapable of doing her job, then this is a potentially fair reason to dismiss, however a fair procedure has to be adopted, and if the parts of the job she cannot do are only a small percentage of the overall job, it seems unlikely that dismissal would be within a range of reasonable responses a reasonable employer would make (therefore probably unfair). Also if she was classed as "disabled" and they ignored this, dismissing would be discrimination as well. The "flip" side of the coin is if the tasks are a major part of the job and they cannot be carried out any more and reasonable adjustments cannot be made etc, then it will not be unlawful.
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