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Unfair Dismissal: Capability

January 17th, 2010


Unfair Dismissal: Capability

This category covers the employee’s ability to do the job and unlike misconduct does not depend on any “fault” on the part of the employee. If an employee’s health or abilities are not up to the demands of the job then, provided the employer acts fairly, dismissal (with notice) can be justified.


Capability: Ability to do the job

If an employee is not doing their job in the way the employer requires the employer should investigate whether that is due to any lack of application on the part of the employee  (in which case disciplinary proceedings could be contemplated) or whether it is due to the employee’s lack of ability in one or more of the tasks required.

If the employer considers it to be due to any lack of ability, the employee must be informed of:-
1. How their work does not measure up,
2. The standards expected of the employee
3. A timescale to improve at the end of which the employer will assess the employee
4. Any support, training or advice available to the employee


As long as the employee is made aware in sufficient detail to enable them to know precisely what improvement is expected of them, and as long as they have been given a reasonable amount of time and a reasonable amount of support to enable them to improve, the employer is entitled to consider dismissal at the end of the improvement period if the employee has still not reached the standards expected.

At this point the employer should

1. Invite the employee to a hearing and letting the employee know in advance:-

1.1 The specific shortfalls in the standards of their work

1.2 That the decision could result in dismissal

1.3 The evidence to show the employee’s work is below standard

1.4 The employee’s right to bring a Union rep or work colleague to the meeting


2. If the employee is found not to have reached the standards required whether either:-

2.1 A further period of improvement should be allowed

2.2 There is a another vacancy within the employee’s abilities which the employee could fill

2.3 Dismissal is the appropriate conclusion


3. Inform the employee of the right to appeal.


The employer should ensure it complies with the requirement of the ACAS code of practice.

If the employer has a suitable vacancy this should be offered to the employee, the employee does not have the right to have their previous terms and conditions preserved, but the employee is entitled to the appropriate notice before they start the new role

If the employer decides to dismiss the employee is entitled to the appropriate notice of termination.

Capability: Sickness

An employee who is off sick for a prolonged period of time can be fairly dismissed if they are unlikely to be well enough to return to work within a reasonable time.

What amounts to a reasonable time depends on the nature of the job, the specific difficulties encountered by the employer in covering for the absence and the size and administrative resources of the employer.

However, even where an employer is easily able to cover the absent employee’s work and even where it costs the employer nothing to keep the job open, an employer is not expected to have to keep the job open indefinitely.

Before an employer can justify dismissing an employee for long term sickness they must:-

1. Investigate the employee’s sickness and specifically find out how long it is likely to be before the employee will be able to return to work

2. Arrange a meeting for the employee to respond to any information the employer has and put their point of view forward if they think their job should remain open longer


The investigation

The investigation is likely to involve speaking to the employee and carrying out some medical investigation. The employer can ask the employee to sign an authority to enable the employer to obtain copies of their medical records, and the employer can ask them to attend a medical examination. An employee is under no obligation to agree to these, but as long as the employer has attempted to carry out these investigations any subsequent dismissal is unlikely to be unfair.

It is important that the employer bears in mind at all times that if the employee is deemed to be disabled under the provisions of the Disability Discrimination Act, the employer is required to consider whether there are any reasonable adjustments that can be made to enable the employee to return to work. Both employer and employee need to be involved in these discussions: the employer best knows what he requires and the employee best knows his own restrictions.  When commissioning a medical report the employer should ask the Doctor to consider whether the employee is disabled and whether there are reasonable adjustments which would enable the employee to return to work. [See Disability Discrimination]


The meeting

1. Invite the employee to a meeting and let the employee know in advance:-

1.1 That the decision could result in dismissal

1.2 The medical evidence which the employer has obtained

1.3 The employee’s right to bring a Union rep or work colleague to the meeting


2. If the employer concludes that the employee is unlikely to be well enough to return to their job within a reasonable time the employer should consider:

2.1 Whether there are any vacancies which can be offered to the employee which the employee could do now or in the near future,

2.2 Whether there are any reasonable adjustments which could be made to enable the employee to return to work (if the employee is disabled)


3. Inform the employee of the right to appeal.


Notice of termination

An employee who is dismissed while off sick is normally entitled to their statutory notice pay at their full normal rate of pay, even though they are likely to be uable to work their notice and even where they are not entitled to pay whilst off sick. Statutory notice pay is one week’s pay for up to 2 years of their employment and after that one week for every year of their employment up to a maximum of 12 weeks. See Notice.


Where the employer has caused the employee’s sickness

In some cases, the employee’s sickness absence may have been caused by the employer, for example due to an industrial accident or industrial disease. This does not mean that the employer cannot fairly dismiss, although if the employee is claiming damages for the injury in a Court case they will also be able to claim their loss of employment if they are dismissed.

In cases where the sickness absence is caused by the employee’s treatment at work, the employer will be expected to investigate this and seek to resolve this before considering dismissal.


Frequent short term sickness absences

Strictly speaking this is likely to come under the “some other substantial reason” category.

The principles are similar to capability (ability to do the job) in that before dismissal the employee should be informed:-

1. The level of sickness absence which the employer considers cannot be tolerated long term,

2. If their sickness absence exceeds those levels

3. The employee should be given a period of time to improve their sickness absence record

4. If their sickness absence does not reach an acceptable level the employer is entitled to consider dismissal.

5. Before dismissal the employer should arrange to meet the employee to discuss the sickness absences and decide whether the employee’s sickness absence is likely to be within an acceptable level. If not the employer can dismiss but the employee will be entitled to their contractual notice.


Tips for finding a solicitor to deal with an unfair dismissal claim

Specialist legal knowledge and experience is a good start, but to “get the edge” it is useful to find a solicitor with experience of representing clients at Employment Tribunals, particularly at the Employment Tribunal where your case is likely to be heard. This is because familiarity with the way a Tribunal is likely to assess particular cases and particular circumstances helps effective advice and preparation right from the start.

Most of our experience here at John Halson solicitors is based in representing clients at the Liverpool Employment Tribunal which covers claims arising from people who have worked in north and central Cheshire including Chester, Warrington, Northwich, Middlewich, Winsford, Tarporley, Ellesmere Port, Great Sutton; and Merseyside including Liverpool, Birkenhead and the Wirral,  Widnes, Runcorn, St Helens, Kirkby, Maghull, Skelmersdale, Ormskirk, Southport, and Formby.

We also regularly appear in the Manchester Employment Tribunal and occasionally in the Leeds, Birmingham and Shrewsbury Tribunals.



Please note that the information on this page is intended to be a guideline and is therefore a summary of the law only and not a complete guide. Before taking any action based on this information you are strongly advised to take legal advice. Whilst every effort has been made to ensure that the information contained on this page is up to date and accurate, no guarantee can be given to this effect.

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