When might non-capability be a fair reason for dismissal?


What do we mean by capability?

Capability refers to an employee’s ability to do the job for which they have been employed.

If an employer considers that an employee is not suitable for the job because they are not performing to the required standards, then they may consider dismissal on the grounds of non-capability. In addition, if an employee develops a long-term illness, which seriously restricts their ability to do their job, then this may become a non-capability issue for the employer.

Fair reasons for dismissal

In both cases, if the employer investigates and gives the employee every opportunity to develop or adjust  their job skills, but judges that the employee is still failing the required standard, then non-capability may be a fair reason for dismissal. However, an employee has the right to expect proper training for the job.

Therefore, with regard to the employee’s ability to do the job, fair reasons for an employer to dismiss an employee may include:

  • Not being able to keep abreast with technological advances
  • Personality clashes between members of the team
  • Long-term illness

Prolonged illness

If an employee is off work with illness for a long period of time, or persistently takes sick leave, then the employer should discuss this matter with them. The employer needs to show that they have investigated the illness, and tried to see if the job could be adjusted, to make it easier for the employee to perform to the required standard. The employer may also consider whether the employee would be able to cope better with an alternative job.

The employer needs to allow the employee a reasonable time in which to recover from their illness. This time period may depend on several factors, such as:

  • Whether cover is easily obtainable for the job
  • Whether the employee is expected to recover
  • Whether the job may be kept open for their return
  • The size and means of the employer

The dismissal procedure still needs to be fair

In all cases, the employer needs to follow the correct dismissal procedure in order for any dismissal to be fair. This is because there are statutory rules covering dismissal procedures, as set out in the Acas Code of Practice.

If you think you have been unfairly dismissed for reasons of non-capability, you should consult with an expert employment lawyer as soon as possible, in order to determine the best course of legal action for your claim.

Contact Law can put you in touch with a local expert employment law solicitor. Call us free today on 0800 1777 162 or fill in the web-form above.

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