2. You should handle issues of unacceptable or inappropriate behaviour ('misconduct') or performance ('capability') in line with the Acas Code of Practice on disciplinary and grievance procedures.. You can use the disciplinary procedure step by step guide to help you through the process.. Remember, if poor performance is the true reason behind a redundancy dismissal, you are taking a risk. Your job won’t always end straight away if you’re dismissed - you’ll stay at work for a time and keep getting paid. 11 Mar 2019. 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. Capability or qualifications dismissals: key resources. Before dismissing an employee for reasons of ill health an employer should find out the current medical position. Resources for performance dismissals. This policy outlines the approaches that may be taken where an employee is incapable of performing their role due to long-term illness or disability, including transfer to another role or dismissal. The Employment Rights Act makes capability a fair reason for dismissal. Cases involving long-term absences should largely follow the same advice set out above. Assuming that the employer can demonstrate that capability is the reason for dismissal, it must then follow a fair procedure. DISMISSAL DUE TO ILL HEALTH. In July 2010 he settled his claim against the autospray centre and was re-employed in his old job. 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. Martin Brewer and Esther Smith advise if this was fair. For instance, the absences were not for a spurious reason and were not excessive or in breach of any policies. Compensation uplift: Acas code of practice does not apply to ill-health dismissal involving no culpable conduct Date: 24 September 2016. If an employer is dismissing for one of these reasons then it’s likely that the dismissal will be … He was dismissed again in March 2010 and claimed unfair dismissal. CIPD members can see more detail in our Redundancy law Q&As. Dismissal may be potentially fair on the grounds of lack of qualifications or, more commonly, capability. Unsurprisingly though, what constitutes a fair procedure for ill health dismissals is more complex than it is for, say, misconduct or redundancy. At the meeting on (insert date) we discussed your capability to return to work. Yes, they can dismiss you due to your capability if they have exhausted every other option that could be open to them to get you back to work (ie. Employment tribunals - legal tests for unfair dismissal claims - capability This advice applies to England Print Your employer may have dismissed you because of the way you've performed at work. Occasionally an employee may have to leave your employment because of long-term ill health.Sometimes the employee will simply choose to resign. The employee is dismissed after 30 months due to ill health and his entitlement to all sick pay has been used up. Dismissal due to capability—long-term absence due to ill health. 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.. 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. 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. Capability dismissal should be a measure of last resort in cases of for underperformance, where efforts or consideration has been given to alternatives such as: Alternative role. Fairness in Dealing with Lack of Capability due to Ill Health. QinetiQ’s position, with which the EAT agreed, was that the ACAS Code was not applicable as the dismissal had not been due to any culpability on the part of Mr Holmes. LEGISLATION The EMPLOYMENT RIGHTS ACT 1996 (ERA 1996) covers this aspect of the law. However, employers are often afraid to approach issues of ill-health pro-actively, for fear of falling foul of disability discrimination legislation and having to undertake lengthy 'risk-assessment' procedures and pay for expensive medical examinations. A Dismissal due to P oor Performance l etter should state that the reason for dismissal is the employee’s poor performance due to their lack of capability, explain the nature of their performance failings and how you have dealt with the matter on an ongoing basis and include a right for the employee to appeal aga inst your dismissal decision. To be potentially ‘fair’, a dismissal must be for one of five reasons: Capability or qualifications. The question of when an employee with a long-term disability related absence can be dismissed for capability is always a difficult one for employers and involves a careful balancing act between weighing up the needs of the business against an employee’s rights to be treated fairly. Employment Info. Dismissal for conduct or capability reasons. The following month he joined another repair company for nearly four months. To ensure that any resulting capability dismissal is fair, when formal action is taken - you should: 1. 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. An employee's lack of capability to do their job due to ill health is a potentially fair reason for dismissal. Inform the employee in writing of the performance issues that exist and invite them to a meeting to discuss these issues. An employee has a contract of employment which provides for 1 month’s notice. Letter confirming dismissal for capability issues . In the case of performance, dismissal should be the final step and taken only if your performance has not improved after warnings. There are five fair reasons for dismissal and capability is one of these. Fichera v Thomas Warburton Pty Ltd [2012] FWA 4382 (Gooley C, 24 May 2012).. The Labour Court recently held that the dismissal of an employee on the grounds of her capability was not justified on either substantive or procedural grounds and, therefore, was unfair. 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. Significant improvements will be required in the management of performance and capability issues if unfair dismissal, age and disability discrimination claims are to be avoided. Where however, a genuine business case for redundancy can be established, the additional risk and cost of a redundancy dismissal may be acceptable to you. Capability dismissal. Illegality or contravention of a statutory duty. Dismissal Due to Lack of Capability. Capability dismissals: lack of skills/aptitude. This will usually involve obtaining with the employee’s consent a report from the employees GP or consultant. Capability procedureDealing with an employee's poor performance can be particularly difficult where you know they are simply incapable of fulfilling the tasks and duties expected of … This will usually involve obtaining with the employee’s consent a This is generally referred to as a capability dismissal as it relates to an issue with your skill, aptitude or health. These could all lead to disciplinary procedures and, if performance or conduct does not improve, dismissal. Leaving Work . Last Modified. He is therefore entitled to statutory minimum notice of 2 weeks (2 full years’ service). The employee was a Branch Manager at a branch that had low sales and was underperforming. It details a number of reasons for fair dismissal – Capability – the employee’s capability assessed by reference to health, skill, aptitude or … 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. It … An employee, who was signed off work due to stress and depression, was dismissed on capability grounds after 10 years' employment. 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 … Letter to an employee confirming his or her dismissal for poor performance during a probationary period. … 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. Employment Update: Recent Labour Court Decision on Capability Unfair Dismissal 17 February 2017. Capability Meeting (Stage 1) I write further to our meeting on (date) with (name HR Officer and TU representative or colleague if appropriate) in attendance. 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. This is called your notice period. 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. 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. Dismissal Due to Lack of Capability. The reason for the shortcoming and … 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. Capability is assessed by reference to skill, aptitude, health or any other physical or mental quality. It’s usually at least a week long. The Employment Rights Act 1996 provides five potentially fair reasons for dismissal, these are capability, misconduct, redundancy, statutory restriction or ‘some other substantial reason’. Yes, you can be dismissed on the grounds of lack of capability, for example because of poor performance, as it is one of the statutory fair reasons for dismissal. Dismissal for capability. In May 2011 he was dismissed yet again due to a reduction in the type of work he did. Unfair Dismissal. Employment law - Disciplinary, capability and dismissal. Your employer should have made the required standards of performance known to you, Conduct. 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