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, 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 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 8: Sick pay and sickness absence. 



A disabled employee may be able to bring a discrimination claim under the Equality Act 2010 (see Chapter 7: 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. In other words, the risk of dismissal must have been clearly spelled out. “Warnings” are looked at on page 358. Appropriate training should be offered and enough time should be allowed to enable the employee to show they have improved (JJ Food Service Ltd v Kefil [2013] UKEAT 0320/12/1202). 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.