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Unfair Dismissal - Capability Webinar Slides


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In this very informative webinar, Helen Gardiner discusses Capability Dismissals.

The webinar covers:
* Capability
* A Fair Procedure
* Setting the Standard
* Dismissing Fairly
* Sickness and Capability
* The Procedure for Claiming

This slideshow contains the first 14 minutes of the webinar recording. You can also subscribe to the Shorebird Free Webinars here:

Published in: Law
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Unfair Dismissal - Capability Webinar Slides

  1. 1. Unfair Dismissal - Capability By: Helen Gardiner On: 10th February 2015 @ 13:00 FREE WEBINAR Starting Soon
  2. 2. Housekeeping “Please use the chat box for questions, thoughts and Debate”
  3. 3. Applicant Tracking System (ATS) Careers websites Recruitment Support  Streamline your recruitment processes  Improve recruitment communications  Promote your employer brand  Reduce the costs of recruitment  Tighter control on recruitment decisions  Manage the ROI of recruitment  Attract better quality people, faster Recruitment Advertising
  4. 4. Please note that the contents of this webinar do not constitute legal advice. CAPABILITY DISMISSALS by Helen Gardiner
  5. 5. 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
  6. 6. Section 98(3): - “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 Capability
  7. 7. Fair procedure Key elements: • 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 dismiss. Capability
  8. 8. 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. ESSENTIAL READING! Download at: on_disciplinary_and_grievance_procedures-accessible-version- Jul-2012.pdf Capability
  9. 9. Setting the standard • Varies from role to role. • Technical and subjective aspects of role. • Some requirements are obvious. • Make the employee aware. • Use probation periods? Capability
  10. 10. Appraisals are important! • Motivate staff. • Evidence of performance problems. • Be honest, not unduly flattering. • If inaccurate could hamper future business decisions e.g. redundancy. Capability
  11. 11. Common examples Capability Lack of productivity/slowness Inflexibility Failure to establish good working relationships with colleagues/customers
  12. 12. 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. Capability
  13. 13. Dismissing fairly • 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. Capability
  14. 14. Ill health Usually a capability issue. Could be “some other substantial reason” dismissal if there is a significant detrimental impact on the business/performance. Persistent unauthorised absences may give rise to a conduct dismissal. Capability
  15. 15. Fair procedure ACAS code does NOT apply. Generally: • Establish the true medical position. • Consult with the employee. Capability
  16. 16. 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. Capability
  17. 17. Long term absence Likely to require further investigation into medical position beyond sick notes. Consider obtaining medical evidence – maybe from more than one source. How long can the employer be expected to keep the job open? • Availability/cost of temporary cover. • Sick pay. • Admin costs. • Size of organisation. Capability
  18. 18. 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. Capability
  19. 19. Exhausted sick pay? • May dismiss before sick pay is exhausted. • Only one factor in many. • Financial provision, and does not indicate the amount of absence an employee is entitled to. • More important is the timing of the return to work. Capability
  20. 20. 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 conciliation process). 3. At tribunal, if successful the employee may claim reinstatement, reengagement or compensation. Misconduct
  21. 21. Contact me: Helen Gardiner Tel: 0113 244 6691 Any questions ?
  22. 22. Telephone: 0113 322 7240 Website: Email: Twitter: Thank you!
  23. 23. Reserve your place today