Checklist: Representing a member accused of poor performance 


Possible arguments to make in a formal hearing include:


• Were adequate and clear instructions given by management?


• Was the member warned about their performance at the time?


• Has the member been given time to improve?


• Has s/he been offered support and training?


• Are there any workplace issues that prevent the member getting on with the job, for example, the actions of others, faulty, unreliable or inaccessible systems or unrealistic workloads?


• Is the member being bullied or discriminated against?


• Is there a pattern of (not necessarily conscious) discrimination against particular groups of workers? For example, are young workers or black workers more likely to be given formal performance warnings? Public sector employers owe a specific duty to promote equality and must keep statistical data that you may be able to use to demonstrate this. 


• Is there evidence of good performance from the recent past, such as past appraisals, or positive customer feedback? 


• Is there evidence that this is a temporary fall in performance because of, for example, personal difficulties?


• Can you point to any inter-personal difficulties at work, for example, line manager conflict?


• Is there any relevant management failure, for example, to set or communicate deadlines?


• Is there evidence of inconsistent treatment of other workers?


• Is the member being unfairly scapegoated to “send a message” to other workers? 


• Is the manager making general criticisms of performance? If so, ask for specific examples.


• Can you suggest that any mistakes had only minor (or no) practical consequences?


• It is generally best to try to cooperate by remaining positive and accepting fair criticism, demonstrating willingness to accept feedback, train and improve.


Checklist: Representing a member in a capability dismissal — ill-health 


Possible issues to consider in a formal hearing include:


• Is the member now better?


• If not, what is the prognosis and when might s/he be fit for work?


• Encourage the member to give the employer a strong positive message that s/he wants to return to work as soon as s/he is fit and to be proactive in suggesting any adjustments to make this possible.


• Is it premature to be considering dismissal?


• Has the employer carried out an appropriate medical investigation, asking for a report from the member’s GP or asking the member to visit Occupational Health? Is the employer’s behaviour consistent with the medical advice on the member’s likely return to work?


• If the employee is fit for some work, has the employer thought properly about offering support or a staggered return, alternative duties, temporarily reduced hours, working from home?


• Are light duties a possibility? 


• What is the real impact of the absence on the organisation’s ability to function without this employee (as opposed to perceived disgruntlement of some individuals)?


• Is an early retirement package a possibility? 


• Is the employee being discriminated against, for example, on grounds of disability or age? Are there reasonable adjustments that could be made?


• Is the employer at all responsible for the employee’s medical condition? Employers who caused the ill-health must “go the extra mile” by doing whatever it practically can to avoid dismissal before deciding to dismiss (McAdie v Royal Bank of Scotland [2007] EWCA Civ 806).


• Is the contractual sick pay exhausted? Just because an employee is still entitled to sick pay, this does not mean they cannot be dismissed, but it might still be an argument worth making. 


Employers need a worker’s consent to access medical information, and a worker has the right to see and comment on any medical report before it goes to the employer. If a report is discouraging and the employee disagrees, they should consider commissioning their own report from their GP. 


It is sensible to cooperate with medical examinations. A member who cannot attend should tell the employer in writing in advance, and suggest a rescheduled appointment. Unreasonably refusal to cooperate will allow the employer to make a fair decision about continued employment based on the information available. 


Some contracts include an express term requiring the worker to agree to a reasonable medical examination at the employer’s request. 


Checklist: Representing a member disciplined for intermittent absence 


Possible arguments to make in a formal hearing include:


• Consistency: does the employer apply its absence procedure consistently, or is it applied more harshly against, for example:


◊ staff with caring responsibilities;


◊ black and minority ethnic staff; 


◊ trade union reps;


◊ different groups of workers; or


◊ staff with chronic health problems or disabilities. 


• Is the employer applying it rigidly, rather than thinking about the circumstances of this particular individual? 


• Are there medical reasons for the absences, and has the employer investigated these properly and provided adequate support and access to occupational health where available?


• What about the individual’s past record? What has changed to cause a sudden deterioration? Is it temporary, for example, difficulties at home because a partner has left?


• Is there a reason to believe matters are likely to improve in the near future?


• Has the employer used surveillance evidence? (See Chapter 4).


For more information on defending sickness dismissals see the LRD booklet Sickness absence and sick pay, 2015, (www.lrdpublications.org.uk/publications.php?pub=BK&iss=1779