Capability, or lack of perhaps more accurately, lack of capability, is a potentially fair reason for your employer to dismiss you.
There are two main situations where this can apply; when your employer questions your ability to do your job, and when your health or to the demands of the job prevent you from doing your job.
Capability: Ability to do the job
If you are not doing your job in the way your employer requires you to they should investigate whether it is due to a lack of application on your part (in which case disciplinary proceedings could be contemplated) or whether it is due to your lack of ability to perform one or more of the tasks required.
If your employer considers it to be due to your lack of ability, they must inform you of:-
1. How they think your work does not measure up,
2. The standards expected of you
3. You should also be given a timescale to improve at the end of which your employer will assess you.
4. You should be given support, training or advice on the tasks you are failing at.
As long as you are made aware in sufficient detail of precisely what improvements are expected of you, and you are allowed a reasonable time and a reasonable amount of support to enable you to improve, your employer is entitled to consider dismissing you at the end of the improvement period if you have still not reached the standards expected.
At this point your employer should
Invite you to a hearing and letting you know in advance:-
- The specific shortfalls in the standards of your work
- That the decision could result in your dismissal
- The evidence to show your work is below standard; and
- That you have a right to bring a Union rep or work colleague to the meeting
If your employer finds that you have not reached the standards required they might either:-
- A further period of improvement should be allowed
- There is a another vacancy within the employee’s abilities which the employee could fill
- Dismissal is the appropriate conclusion
Your employer should let you know that you have the right to appeal their decision.
If are off sick for a prolonged period of time you can be fairly dismissed if it can be shown that you are unlikely to be well enough to return to work within a reasonable time.
A number of factors will determine what might be considered a reasonable amount of time, such as;
The nature of the job, any specific difficulties your employer might have in covering your absence and the size and administrative resources of the employer.
Even if your employer can cover your work without incurring extra costs in the employer nothing to keep the job open, an employer is not expected to have to keep the job open indefinitely.
Before your employer can justify dismissing you for long term sickness they must:-
1. Investigate your sickness and specifically find out how long it is likely to be before you will be able to return to work
2. Arrange a meeting with you to discuss your illness and allow you to respond to the information your employer has gathered and to put your views forward about why you should remain employed.
The investigation will probably involve your employer contacting your GP or consultant to find out more about your medical condition. To do this they will need your permission so will ask you sign an authority to enable them to seek this information. Alternatively, they may request that you have an appointment with an occupation health practitioner to have an assessment of the prognosis of your condition and the likely time frame of when you could return to work.
You are under no obligation to agree to either of these requests, but it is recommended that you do. Failure to agree might allow your employer to argue they did their best to do a proper investigation but you did not assist them. Consequently, any unfair dismissal claim you might subsequently make could be considerably weakened.
If your long term absence is due to a disability, then under the provisions of the Equality Act 2010, there would be a duty on your employer to consider making some reasonable adjustments that might allow you to return to work. Your employer might ask your GP if there are any reasonable adjustments they can recommend when they are conducting their investigation. If your employer then fails to implement any reasonable adjustments then you may have a disability discrimination. claim.
Be aware though that even if you are off work because of a disability you can still be fairly dismissed for a lack of capability.
If after the investigation your employer decides to have a Capability meeting with you they must;
Invite you to a meeting and let you know in advance:-
- That the meeting might result in the decision to dismiss you.
- They should provide you with the medical evidence they have gathered; and
- That you have the right to be accompanied to the meeting by a Union rep or work colleague.
If following the meeting your employer concludes that that you are unlikely to be well enough to return to your job within a reasonable time your employer should consider:
- Whether there are any alternative vacancies available that could be offered to you which you could do; and
- If there are any reasonable adjustments they could make to enable you to return to work (if you are disabled)
However, after your employer has considered these alternatives, they may decide to dismiss you but must inform you of your right to appeal.
If you dismissed while off sick you should be entitled to statutory notice at your normal rate of pay, even though you are still off work.
The success you might have in any subsequent Employment Tribunal claim for unfair dismissal will depend on a number of factors but the reasonableness of the dismissal and the closeness your employer followed the above procedures will be a very influential.
This can be a difficult area of law so if you feel you have been unfairly dismissed for capability then contact us immediately as there are time limits for bringing a claim. We will give you 30 mins free advice on the merits of a claim.
Another situation where your employer might want to dismiss you is if you are frequently off sick for short periods.
The principles your employer will need to follow to fairly dismiss you are similar to capability (ability to do the job) in that before dismissal you should be informed:-
1. Of the levels of sickness absence which are considered too great.
2. You should be given a period of time to improve your sickness absence record
3. That if your sickness levels do not improve to an acceptable level you may be dismissed.
If after being allowed time to improve your absence records you fail to do so you may be dismissed but will be entitled to either statutory or contractual notice.
We at Winrow Solicitors are very experienced in Employment Law and regularly represent clients in the Employment Tribunals, so are able to offer you a first class service, so do not delay in contacting us for a free 30 min consultation on the merits of your case.