Unfair Dismissal - Capability
By: Helen Gardiner
On: 10th February 2015 @ 13:00
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Please note that the contents of this webinar do not constitute legal
Employment Rights Act 1996 (“ERA”)
Dismissal unfair unless:
• the employer can show that the reason (or the principal
reason) for the dismissal was a potentially fair reason.
Capability is a potentially fair reason for dismissal; and
• the tribunal finds that, in all the circumstances (including
the employer’s size and administrative resources) the
employer acted reasonably in treating that reason as a
sufficient reason for dismissal. That means that the
dismissal must be both procedurally and substantively fair.
- “Capability” means capability assessed by reference to skill,
aptitude, health or any other physical/mental quality
- “Qualifications” means any degree, diploma or other academic,
technical or professional qualification relevant to the position
Section 98(2) ERA:
A reason falls within this subsection if it:
(a) Relates to the capability or qualifications of the employee for
performing work of the kind which he was employed by the
employer to do
• A proper investigation into the problem has taken place.
• Employee has been made aware of the problem and has been
given an opportunity to improve within a realistic timescale.
• Employee has been provided with appropriate support/training.
• Employee’s progress is reviewed during the review period.
• Employee is offered a right of appeal against the decision to
Acas Code of Practice on Disciplinary
and Grievance Procedures
Applies to dismissals for capability but NOT ill health.
Must be taken into account by tribunals.
• Varies from role to role.
• Technical and subjective
aspects of role.
• Some requirements are
• Make the employee aware.
• Use probation periods?
• Motivate staff.
• Evidence of performance
• Be honest, not unduly flattering.
• If inaccurate could hamper
future business decisions e.g.
Lack of productivity/slowness
Failure to establish good working relationships with
Is performance really the issue?
May be other issues that need to be addressed, such as:
• Ill health or disability;
• Problems with child care or caring responsibilities;
• Poor management;
• Harassment or bullying by a manager;
• Excessive workload leading to inability to deliver and stress.
Consider disabilities and Equality Act considerations,
particularly making reasonable adjustments.
• Must show a reasonable belief in employee’s
incompetence at the time of the decision.
• Carry out a preliminary investigation.
• Keep notes.
• Investigate any matters arising.
• Consider whether to take disciplinary action.
• Invite employee to a formal meeting.
• Usual to give a warning and timescale for improvement.
Usually a capability issue.
Could be “some other substantial
reason” dismissal if there is a
significant detrimental impact on
Persistent unauthorised absences
may give rise to a conduct
ACAS code does NOT apply.
• Establish the true medical position.
• Consult with the employee.
Reasonableness - factors
• Nature of the illness.
• Prospects of returning to work.
• Likelihood of recurrence.
• Need for employer to have someone doing the work.
• Effect of absences on the rest of the workforce.
• Extent to which employee was made aware of the position.
• Employee’s length of service.
Long term absence
Likely to require further investigation into medical position
beyond sick notes.
Consider obtaining medical evidence – maybe from more than
How long can the employer be expected to keep the job open?
• Availability/cost of temporary cover.
• Sick pay.
• Admin costs.
• Size of organisation.
Persistent short-term intermittent absence
• Hard to predict if attendance will improve.
• If there is no underlying health condition, medical expert
unlikely to be helpful.
• Review pattern of absences and reason.
• Warn employee of the required improvement.
• If no improvement, consider dismissal.
Be cautious – wise for employer to satisfy itself that there is
no underlying health condition.
• May dismiss before sick pay is
• Only one factor in many.
• Financial provision, and does
not indicate the amount of
absence an employee is entitled
• More important is the timing of
the return to work.
Procedure for claiming
1. Employee must contact Acas to see if the complaint can
be settled through Acas early conciliation.
2. If not settled, must issue a claim within 3 months minus
one day of dismissal (though limitation extended by
3. At tribunal, if successful the employee may claim
reinstatement, reengagement or compensation.
Tel: 0113 244 6691