Unfair Dismissal. Dismissal for capability. It was found that the employee was incapable of providing the necessary leadership to improve the performance of the branch and this was a valid reason for dismissal. In May 2011 he was dismissed yet again due to a reduction in the type of work he did. CIPD members can see more detail in our Redundancy law Q&As. The Poor Performance and Capability Notice of Dismissal Letter records the last Disciplinary Hearing date and the written Formal Warning issued as a result of the hearing. Dismissal due to capability may also include instances where the employer dismisses because the employee is no longer capable of doing the job they were employed to do because of illness.. Employment Info. The question: I have been working for a company for just under 10 years and just before Christmas, I went off work sick, due to a death in the family. Employment Update: Recent Labour Court Decision on Capability Unfair Dismissal 17 February 2017. 2. An employee has a contract of employment which provides for 1 month’s notice. In the case of performance, dismissal should be the final step and taken only if your performance has not improved after warnings. Employment law - Disciplinary, capability and dismissal. Letter confirming dismissal for capability issues . A persistent or long-term illness can be a valid reason for dismissal, as can being unable to perform the role because you lack skill or expertise, but in each case your employer must follow a fair process. Dismissal due to capability—long-term absence due to ill health. Fairness in Dealing with Lack of Capability due to Ill Health Before dismissing an employee for reasons of ill health an employer should find out the current medical position. The employee is dismissed after 30 months due to ill health and his entitlement to all sick pay has been used up. To support a dismissal on grounds of capability due to long-term absences, you should obtain detailed medical evidence confirming that the employee’s return to work is unlikely. This week, the Employment Appeal Tribunal (EAT) served a useful reminder of how the handling of a dismissal on grounds of ill-health capability may give rise to valid claims for disability discrimination. Even where one of the potentially fair reason for dismissal applies, whether a dismissal is fair will depend on the reasonableness of the employer’s decision in the particular circumstances and … If an employee’s health or abilities are not up to the demands of the job then, provided the employer acts fairly, dismissal (with notice) can be justified. The Employment Rights Act makes capability a fair reason for dismissal. Unfair Dismissal: Capability This category covers the employee’s ability to do the job and unlike misconduct does not depend on any “fault” on the part of the employee. Unsurprisingly though, what constitutes a fair procedure for ill health dismissals is more complex than it is for, say, misconduct or redundancy. For instance, the absences were not for a spurious reason and were not excessive or in breach of any policies. Remember, if poor performance is the true reason behind a redundancy dismissal, you are taking a risk. Capability and conduct dismissals: The Process To ensure that any resulting dismissal is fair, you should: Arrange a meeting with the employee, telling them the reason for it. Assuming that the employer can demonstrate that capability is the reason for dismissal, it must then follow a fair procedure. Letter to an employee confirming his or her dismissal for poor performance during a probationary period. Fairness in Dealing with Lack of Capability due to Ill Health. In Holmes v Qinetiq Ltd [2016] IRLR 664 EAT, the EAT held the "Acas code of practice on disciplinary and grievance procedures" has no application where an employer does not allege culpable conduct by an employee. The reason for the shortcoming and … With a capability dismissal for health or physical/mental condition reasons, it is not a case of needing to follow a procedure whereby the employee is given a series of warnings, as you would where the reason was related to performance. Dismissal for conduct or capability reasons. This will usually involve obtaining with the employee’s consent a report from the employees GP or consultant. The Employment Rights Act 1996 provides five potentially fair reasons for dismissal, these are capability, misconduct, redundancy, statutory restriction or ‘some other substantial reason’. This is generally referred to as a capability dismissal as it relates to an issue with your skill, aptitude or health. 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