Capability dismissals

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. However, the employer will be expected 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 key question in this kind of case 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 7.

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 clearly the standards of work required and the consequences of failing to meet them. Training should be offered (JJ Food Service Ltd v Kefil [2013] UKEAT 0320/12/1202) and the employer should be able to show that alternatives, such as a transfer to another job, were considered. Failure to follow an internal capability procedure is likely to make a dismissal unfair.