Dismissal owing to capability concerns may occur when an employee is not able to do their job to a required standard.

‘Capability’ is a potentially fair reason for dismissal. To be deemed fair by a tribunal, an employer needs to show that a decision to dismiss was reasonable in the circumstances, and that it was taken after following a reasonable, established procedure.

What may contribute to a lack of capability?

This may be a result of factors such as:

• ill health
• inadequate training
• a lack of skills and/or aptitude for the job.

When it comes to aptitude, there can be a fine line between capability and misconduct. With health issues, there may be a danger of an employer’s perception of incapability being interpreted as discrimination. Care is required when dealing with this type of situation.

Defining ‘a lack of capability’

Even if an employee has the skills to do their job, they can be dismissed if they don’t have the right aptitude – i.e. they are unable to work with clients, or refuse to work in line with an employer’s reasonable requirements.

Other examples include poor task completion, a failure or refusal to adapt, or making regular mistakes.

The fact that they can still do some, but not all, of their duties does not necessarily mean that a tribunal will find their dismissal unfair.

Assessing performance

Employers must have a procedure in place for dealing with issues of capability. The first part of this should be to ensure expectations about standards and performance are clearly defined and communicated.

The standards expected by the employer should be in the employee’s written terms of employment, or in a workplace policy booklet.

A process should also be in place for assessing the skills and performance of employees, in line with the standards expected of them.

Dealing with initial concerns

If an employer becomes aware of a capability issue, the employee should be informed with a view to helping them improve and reach the required standard. A record should be kept of any concerns.

It is important to note that issues relating to skill and ability will need to be dealt with differently from those concerning health problems.

Lack of ability

It’s important employers help employees to improve in this situation. However, the consequences of failing to improve sufficiently should be explained, and clear targets set (with a reasonable timetable for achieving these). Any reasonable and appropriate support, such as further training, should also be provided.

It may be necessary to give a series of warnings, so an employee is allowed a reasonable chance to improve.

If the employee still fails to improve, this may be reasonable grounds for dismissal. That said, it’s recommended that employers seek professional advice before taking action.

Mental or physical ill health

In this situation, an employer needs to understand the health issue concerned and how it will impact on the employee’s ability to do their work over the short- and long-term.

A medical report is normally essential. The employee may also need to consider getting some assistance or advice from occupational health services.

The employer will need to consider whether any reasonable adjustments can be made to assist the employee, or whether they can be offered alternative employment. The employee should also be given the opportunity to improve.

The dismissal procedure

If the employer has followed internal guidance correctly and it’s clear the employee is still not capable of doing their job or improving, the employer can give relevant notice of dismissal.

What happens if the matter goes to tribunal?

A dismissal will not be treated as unfair at a tribunal if the employer has acted reasonably and fairly.

It will be the employers’ duty to prove that capability was the reason for the dismissal. They do not have to prove the employee was incapable of doing their job, just that they honestly believed they could not do it and had reasonable grounds for that belief.

The employer will then have to show that they acted reasonably.

In deciding, the tribunal may look at what steps the employer took to help the employee improve, and what they did to ensure the employee was capable at the outset of their employment, in terms of providing clear job specification guidance.

Getting professional assistance with a capability dismissal

When it comes to dismissing staff due to capability, it is imperative that, as an employer, it is done fairly and is not unexpected.

At Springhouse Solicitors, our knowledge of employment law and specific expertise in dismissal cases allows us to ensure employers carry out capability dismissals in a manner that will not result in claims of unfair dismissal or discrimination.

For an initial consultation, and to find out more about how we can help you, please get in touch.