Capability dismissals



“Capability” relates to “skill, aptitude, health or any other physical or mental quality”. An employee can be fairly dismissed on grounds of capability because of sickness absence, but the employer will be expected to show that before deciding to dismiss, they tried to find out about the employee’s medical condition and prognosis for a return to work, and examined alternatives to dismissal.
The key question is always “how much longer is it reasonable to expect the employer to wait before deciding to dismiss?” (BS v Dundee City Council [2013] CSIH 91). The law governing dismissals while off sick is outlined in Chapter 8: Sick pay and sickness absence. A disabled employee may be able to bring a claim under the Equality Act 2010 (see Chapter 7).





If a capability dismissal is on the grounds of skill or aptitude, the employer will be expected to have given warnings and to have explained clearly the standards of work required and the consequences of failing to meet them. The risk of dismissal should have been clearly spelled out. Appropriate training should be offered and enough time should be allowed to enable the employee to demonstrate improvement (JJ Food Service Ltd v Kefil [2013] UKEAT 0320/12/1202). The employer should show that suitable available alternatives such as a transfer to another job were considered before dismissal. 


As always, whether or not a capability (performance) dismissal is fair will depend on whether it is within the band of reasonable responses available to the employer, taking into account all the circumstances, including the nature and seniority of the role (Quintiles Commercial UK Limited v Barongo [2018] UKEAT/0255/17/JOJ). The Acas Code of Practice on Discipline and Grievance will apply to a dismissal for failing to meet performance standards (see page 338). Failure to follow any extra steps in an internal capability procedure is also likely to make a dismissal unfair.