How to Undergo Capability Dismissal on Your Employees

Employees do not have protection against being unfairly dis­missed (other than on grounds of race or sex discrimination and trade union membership and activities) until they have been employed for a year or, in the case of companies employ­ing no more than 20 people or people who began work on or after 1 June 1985, for two years.

This provision is of particular importance if a company is thinking of dismissing someone because he is not able to do his job properly. While ‘capability’ is one of the five reasons for dis­missal accepted as being fair by the law, an industrial tribunal would naturally want to know why it had taken the employer so long to discover that the employee was not up to standard.

This time limit means that companies should have adequate opportunity to judge whether or not new employees are cap­able of carrying out their job to the required standard well before the rights under the unfair dismissal law arise. Larger companies often carry out sophisticated systems of staff appraisal to measure new employees, but this is usually neither practicable nor necessary in small businesses. A more sensible approach is to establish a system to ensure that a positive de­cision is made at the right time: make a note in the diary three months before the employee is due to acquire his rights to re­mind you to consider the employee’s overall progress.

No matter how good a system is established, however, there will always be cases where the work of an employee gradually deteriorates, or higher standards become necessary. Before an employee is dismissed for such a reason an industrial tribunal would look to see whether:

  1. The employer had talked to the employee to try to discover the cause of the poor work (particularly in the case of a pre­viously satisfactory employee).
  2. The employee had been told in what way his work was below standard and, where appropriate, had been offered help training.
  3. The employee was given a reasonable amount of time improve.

The absence of any of these factors will, in most cases, lead to an unfair dismissal finding. More positively, failure to follow this procedure makes no commercial sense: it can be time-con­suming and expensive to recruit a new employee to replace the sacked person, and there are no guarantees that the replace­ment will prove to be any better.

Another type of dismissal which falls under the ‘capability’ umbrella is on grounds of ill-health. One of the most widespread myths about unfair dismissal law is that employees cannot be sacked when they are ill. While this is quite untrue, employers do need to ensure that they follow fair procedures before taking action against an absent employee.

In cases of long-term sickness absence, where there are difficulties in covering the job, the normal procedure to be adopted is:

1. Contact the employee to ask whether he knows when he is likely to be fit to return or, if this is practicable, whether he might be able to return to a different job, or on a part-time basis.

2. If the employee does not know when he will be able to re­turn, ask for his written permission to contact his doctor.

3. Write to the doctor, attaching the employee’s letter of con­sent, outline the nature of the employee’s job and the length of time he has been absent, and ask if the doctor can estimate his likely date of return to work. Armed with this infor­mation, a decision can then be made as to whether the job can be held open until then.

If the doctor refuses to reply, make arrangements for a medical examination to be carried out privately. If the employee refuses to attend such a medical, he can be warned that his job is in jeopardy unless he co-operates with the company in trying to establish when he will be fit to return.

This type of procedure, though, is not relevant in cases of re­peated short absences from work, unless there is one underlying ailment causing the absences. A medical examin­ation would be a waste of time for an employee who was off work with ‘flu one week, with backache a few weeks later, migraine the next time, and so on. Doctors are not fortune tellers and would not be able to predict the likelihood of future unrelated illnesses.

The sort of approach that is most likely to satisfy a tribunal is carry out a fair review of the absence record, to ensure that it t0 significantly higher than that of other employees (or in relation to the demands of the job), and then tell the employee that unless his health improves he will have to be dismissed. This may then give him the incentive to see his doctor, take a tonic, or whatever, so that his attendance improves.

If the employer believes that the absences are not caused by illness at all, for example if they always seem to occur when the local football team is playing away, then the employee should be given a formal written warning that he will be dismissed if the absences continue.

Whether or not the illnesses are genuine, the law does accept that employers and particularly small businesses, which have difficulty in covering absence, are acting fairly if they have to dismiss an employee who is frequently away from work, in order to ensure that the job can be carried out properly in the future.

Filed Under: Work & Careers


About the Author: Vanessa Page works a career counselor in one of the leading firms in Los Angeles. She is also a blogger and gives tips on how people can tackle their work and career issues. She has 8 years of experience in this field.

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