If your employer believes that you are not performing your job up to the required standard they could terminate your employment on the grounds of capability. This could happen because if they perceive you don’t have the right aptitude or skills needed for the position. It is also possible if they believe that you are unwilling or reluctant to do your job correctly, despite your capabilities. In cases such as these, the employer may choose to deal with the issue by dismissing you after following the statutory disciplinary and dismissal process.
This category of dismissal is called capability dismissals. To prove a ‘fair’ dismissal, an employer must show that they have acted reasonably and fairly in carrying out the dismissal.
What is Capability Dismissal?
According to employment law in the UK, cases relating to capability dismissal can be broken down into the following categories:
Cases under this category are quite rare, as most employers must be aware of the employee’s qualifications before offering them the job. Qualification may become relevant when any candidate applying for the job provides false information about their qualifications on their job application.
An employee is held to be incompetent when he or she is not able to perform their duties as specified under the terms of the contract. Examples of incompetence may include slow task completion rates, lack of adaptability, continual mistakes and inability to work alongside colleagues.
If an employee takes leave from work for prolonged or unspecified periods of time, citing health concerns, the employer may potentially rely on this reason to show that the employee is unable to do their job and dismiss them.
What is the procedure for Capability Dismissals
If an employer cites incapability as a reason for an employee’s dismissal, they need to show that they have given the employee a fair opportunity to improve their performance or return to health before joining work. In case the employer fails to do so, then the employment tribunal may rule the employee’s termination as an unfair dismissal.
What are the fair reasons for Capability Dismissal
If you have been dismissed because of your conduct, it usually would mean that you have broken one or more terms of your employment contract. Examples of poor work conduct include:
- continually missing work;
- poor discipline;
- drug or alcohol abuse;
- theft or dishonesty;
Your employer must follow a statutory disciplinary procedure (as set out in the contract of employment) before proceeding to dismiss you for misconduct.
Your Ability To Perform Your Job
Your employer may also dismiss you if they find out that you have not been performing your job up to the required standard. Examples include:
- you have not been able to embrace the technological changes to your job;
- you are unable to work alongside your colleagues;
Your employer must ensure that you have received adequate training before you commence your job. Also, if your job performance is deemed unsatisfactory, you should be informed of the same and be given an opportunity to improve before any disciplinary action is taken.
If you are taking frequent but intermittent or prolonged leave from work, citing health reasons, your employer must consider any alternatives before proceeding to dismiss you. This may occur if your employer changes your shift timings or assigns you flexible working hours.
Regardless, your employer is expected to allow you a reasonable period to recover from your condition and resume work. The actual period would depend on;
- how long it would take you to recover;
- how specific is your recovery time (for example, if you have broken your hand, it is clear how long it will take for your hand to heal);
- if your employer has a replacement to cover for your job;
- whether your work position can be kept open;
Employers have a legal obligation to make ‘reasonable adjustments’ to the working environment, to meet the requirements of their staff members who have a disability. Dismissal on the grounds of disability may be considered as unfair by an employment tribunal.
Redundancy is described as a situation, wherein your employer dismisses you from your job, due to a reasonable business requirement. Such reasons may include:
- the introduction of new technology has made your job unnecessary;
- the job position you were hired doesn’t exist any longer;
- there is a business requirement to cut costs;
- the business is closing down or moving to another location;
Some Other Substantial Reason
In this situation, your employer may have an overwhelming reason to terminate your employment. Reasons that may fall into this category include:
- an ongoing, unresolvable personality clash between you and a colleague;
- unreasonably refusing to accept any change to the terms of your employment or company reorganisation;
Unfair Treatment and Capability Dismissals
In case you feel that you have been subjected to discriminatory treatment or have been dismissed from your job without any legitimate reason, you have the option of raising a formal grievance. You can inform your employer in writing about how strongly you feel about the situation, while asking them to provide a written explanation about the decision.
Lastly, you must consider Early Reconciliation before making an Employment Tribunal claim. For most cases, there is a 3-month time limit to bring a complaint to the Employment Tribunal. As a result, you need to keep in mind the limit while bringing your claim within the stipulated period.
Our Employment Law Solicitors can assist with all types of claims. Naturally, we pride ourselves on providing the best possible service to the highest standards, we can provide free employment law advice on all problems.
Call us on 0800 756 6605 or 020 3923 4777
Tom Street qualified in 2003 and had over 16 years experience in all areas of litigious law. He studied at the University of Manchester. He undertook his legal practice course at the College of Law in Guildford. He then, subsequently underwent his legal training specialising in employment law and litigation, at a firm in Chancery Lane, London.
Fully qualified, he moved to a niche litigation practice in the City of London.
In 2005, Tom set up his own legal practice, Tom Street & Co Solicitors and as part of this, in accordance with his strongly held objective to provide everyone with an easy pathway and readily available access to justice he established the online portals Do I Have A Case? and Tribunal Claim. These websites are trading names of Tom Street & Co Solicitors.