Fair reasons for dismissal

Capability

A “capability” dismissal relates to “skill, aptitude, health or any other physical or mental quality”. An employee can be fairly dismissed because of a poor sickness record, but the employer will usually have to show that before deciding to dismiss, it tried to establish the employee’s medical condition and prognosis for a return to work and examined alternatives to dismissal. The law governing dismissals while off sick is outlined in Chapter 7: Sickness absence and sick pay.

A disabled employee may also be able to bring a discrimination claim under the Equality Act 2010 (see Chapter 6: Disability discrimination).

If a dismissal is on the grounds of skill or aptitude, the employer will be expected to have given warnings and to have explained the standards of work required and the consequences of failing to meet them. Training should be offered and the employer should be able to show that alternatives, such as a transfer to another job, were considered (see JJ Food Service Ltd v Kefil UKEAT/0320/12/SM). Failure to follow an internal capability procedure is likely to make the dismissal unfair.