Medical capability can be a difficult subject for employers, and to carry out the process correctly, it requires understanding and patience.

It is a process used to manage an employee whose health is impacting their work, resulting in them being unable to do their job to a satisfactory level and often involves the employee being absent from work for substantial periods of time.

Medical capability may or may not involve a disability: “a physical or mental impairment which had adverse effects that are substantial and long term” (Equality Act 2010). It may or may not end in dismissal.

Although this process can be used as a ground for dismissal, dismissal should only be considered as a last option, where reasonable adjustments, change in work schedules, remote working and flexible working have been considered and the result is not beneficial.

If this process is not followed with great care, it can lead to unfair dismissal or disability discrimination claims.

The Equality Act 2010 states you must not be discriminated against because:

• You have a disability
• Someone thinks you have a disability (discrimination by perception)
• You are connected to a person with a disability (discrimination by association)

There is no limit on disability discrimination awards, and it has an average award of £45,435.

You should begin your absence management process by conducting a welfare meeting once the employee has been absent with sickness for approximately four weeks (or in line with your policy).

It is crucial for the employee to maintain an up-to-date fit note as SSP may stop in accordance with their employee handbook upon failure to evidence incapacity.

Employers have a duty of care to support and help their employees where possible.

A welfare meeting is for an employer to gain a good understanding of their employee’s current health situation, to establish how long they’re likely to be absent, how likely they are to be able to perform their job upon return to the business and what next steps can be taken to support their return.

Employee should be notified of the welfare meeting in writing with sufficient notice to attend, this may be in or away from the workplace, depending on the reason for their sickness absence. You, as an employer, are not legally obligated to allow a companion to attend for the employee, however it is advised to encourage an employee to have a friend or relative present as support.

A welfare meeting may or may not aid an employees return to work however; it will give contact and information vital in supporting the employee during this difficult period. No warnings are issued as a result of a welfare meeting. You should arrange to have regular welfare meetings in order to maintain contact and up to date information regarding the employee’s condition.

Employees are entitled to 28 weeks statutory sick pay (SSP). It could be that you offer company sick pay in addition to SSP which lasts for a longer period. As an employer, you would not begin to manage an employee out through the medical capability process before the 28 weeks SSP or company sick pay is close to exhaustion.

Approximately 4-6 weeks before exhaustion of the sick pay, an employer can arrange a welfare meeting and also request permission to access an employee’s medical records or refer the employee to occupational health.

You may have received a medical report at the start of an employee’s absence, but in order to potentially look at medical capability dismissal, a new, up-to-date report must be obtained. Requesting access to medical records should be approached sensitively with reassurance given to the employee.

The employee should be comfortable and informed throughout; the employee is under no obligation to grant access to their medical records to their employer.

If you gain consent to access an employee’s medical records, you will subsequently send off for a report and await its return.

Upon its return, you would invite the employee to a medical capability meeting in order to discuss the content of the report. In detail, at the meeting you will look to discuss:

• Whether the employee agrees with the report and if not, which parts they do not agree with and why
• Whether they feel able to return to work and if so when
• If the employee is waiting for further tests/appointments and if so when and what these are for
• If the employee feels able to return to work, do they need sustained reasonable adjustments and would they be short term
• What medication/treatment is the employee receiving and what side-effects does this have
• Does their condition affect their day-to-day life and is it classed as a disability
• Do they feel their health is improving

In the circumstances where the GP has stated in the report that no reasonable adjustments can be made which can help, you would discuss how realistic it is for them to return and be able to do their role sufficiently.

It is important to remember that if this leads to dismissal, they are entitled to work their notice for up to 12 weeks, depending on their length of service.

Employers are not obligated to create a new role for their employee, however, if the report states they’re fit to return to work you must discuss what reasonable adjustments may be appropriate for the individual such as a phased return, change in working hours or altered duties.

A referral to an occupational health specialist may be needed to look at the requirements of an employee’s job role against current limitations and what adjustments can be made to their working conditions.

It is important to be aware you should never dismiss an employee or invite into a disciplinary meeting post welfare meeting. Any wrong action could lead to unfair dismissal and disability discrimination claims, which may bring financial penalties, business disruption and lower workforce morale and productivity.

If there is no reasonable likelihood of an employee’s return to work, with or without adjustments, then dismissal may be an option.

Overall, medical capability is a tricky process, which is very important to follow correctly, However, you have access to your advisor, who will be able to support you with bespoke letter and templates to help you structure your meetings.

Remember: each case is managed in accordance with its own details and merits, and therefore no two medical capability processes will be the same.