A Sales
Manager brought into my company through a merger has been off work since before
the TUPE transfer but is entitled to 52 weeks’ sick pay, which is almost up.
Medical reports from his consultant and from an Occupational Health doctor have
not identified any need to change his workload apart from suggesting a phased
return to work. He works full-time and driving to visit customers is a
significant part of his job.
We are
offering a phased return over a 5-week period. However, he tells me he still has high
blood pressure and will not be able to return to his normal duties in that
timescale. He has requested a phased return over 12 weeks, on much lighter
duties than usual (no driving, home-based and phone work only). He is also awaiting a hernia operation which will involve a 2-week absence during this 12-week period and may also delay his return to full-time work.
Can anyone
offer any advice about a way forward, including the possibility of a capability
dismissal when the evidence he cannot do the job is coming from the employee?

As his sick pay entitlement is nearly expired and your Company has adhered to that entitlement, I believe it is now not reasonable to continue to support this individual.  He obviously still has major health issues (high blood pressure and an imminent hernia operation due) and these will prevent him from meeting the T & C's of his employment contract. 

As you say, medical reports received do not indicate that he cannot perform his duties and only suggest a phased return to work.  Were there any suggestions from the medical profession about the timescales of the return, or did your Company set the 5 week period?

You may wish to gain the Sales Manager's permission to approach his GP as this further health issue (hernia) appears to be another separate problem. His GP may be able to provide a prognosis on all of his health issues and his expected return to work in a full capacity. When communicating with his GP you might mention that the individual himself does not believe he is able to return to work in a full capacity because of high blood pressure.

In addition, a meeting with the individual on a face-to-face basis might be useful.  You could then discuss with him he findings of the medical reports received, including that advice received has not suggested that he cannot perform all of his required duties, only that he should phase back into the role (e.g. reduced hours of work but covering all tasks assigned to his position). In my experience, when employees are involved in these matters, for example, setting the schedule for return to work and discussing all aspects, staff buy-in to the plan.

One last point that you may consider is that it is highly likely that this person will be protected by the DDA, although it is not expected to support staff indefinitely.  Have you considered offering alternative employment that might accommodate him?

Hope this is useful.

The risks in doing this the wrong way - either keeping someone on who really has reached the end, OR terminating but then losing a Tribunal - surely are great enough to pay up and ask a proper Employment Lawyer.

Obviously something must be done, but to decide on what that is on the basis of some random comments in a chatroom would be nothing short of cavalier!