If an employer decides you are incapable
of doing your job then in theory he can dismiss you on the
grounds of capability. The capability issue usually arises
when you are new to a job or something happens that starts
to affect your ability to do that job.
Probation period
When most people are employed at the beginning,
they are given what is commonly referred to as a probationary
period to work. It is quite common that during the probationary
period, he may be spoken to and it may be pointed out where
you are failing to perform your duties to the satisfaction
of your employer.
During your probation period, because you
clearly have less than a year’s service, it is normally
3 months, the employer normally does not need a reason to
dismiss you at all and can simply dismiss you with requisite
statutory notice.
Once you are outside your probationary period,
normally there is a contractual term that requires you to
receive warnings about your capability or your job performance
prior to any particular dismissal.
Poor job performance
Once you are contractually obliged to give
warnings for poor performance, the performance continues to
be unsatisfactory, then provided the internal procedure is
followed correctly, you can eventually be dismissed on the
grounds of capability. They often use the word poor performance
but that is linked directly to being incapable of doing the
job satisfactorily. This is frequently used for example in
sales. You might appear to be the best Salesman in the world
when you are taken on and you might perform well but if your
sales drop off and then you are given a verbal warning for
not reaching your targets and a couple of months later you
get a written warning again for not meeting your targets and
then a final written warning, because you are incapable of
selling and can justify the dismissal shortly after that on
the grounds of capability if you continue to under perform.
The problem in justifying it an Employment
Tribunal in these circumstances is the target set must be
reasonable, there must be training or assistance or mentoring
to bring you up to standard. If they fail to bring you up
to standard and act fairly in giving you time to correct the
issue or provided you with reasonable training, then the Tribunal
are likely to conclude that the dismissal was unfair.
Disability discrimination
The further area of difficulty in relation
to capability is its conflict with disability discrimination.
We are going to be dealing with disability
discrimination as a separate topic under the discrimination
heading but suffice to say that if you become incapable of
doing your job without further assistance and the cause of
you not being able to do your job is related to a disability,
then the employer is obliged to consider reasonable adjustments
to take account of these problems.
I will give you an example of what I mean.
Say you are employed as a Typist and you are working
on a word processor. Over a period of time you develop
a condition such as rheumatoid arthritis. It causes
your hand to be inflamed on occasion and it slows you
down when doing your typing. Rheumatoid arthritis is
capable of amounting to a disability. Employers are
obliged to consider reasonable adjustments to enable
that person to continue in work and that could include
a change of duties. If the employer then dismisses without
complying with the Disability Discrimination Act on
the grounds of capability, then they will probably be
discriminating against the employee on the grounds of
disability. |
If you have a long term condition and you
have been dismissed on the grounds of capability, then you
should consult with a legal advisor because you have potentially
got a claim. You do not need a year’s service if you
have got such a claim and it would be important to get some
advice specifically about your individual circumstances.
Those adjustments can include making allowances
for the slow pace of work or to someone for example - with
a manual handling and dexterity problem as a result of MS,
it may be that setting more reasonable targets for the completion
of work is a reasonable adjustment. Other examples could include
allowing for better equipment to assist the employee to keep
up with their colleague.
If someone is too ill to work consistently,
then the employer would dismiss them on the grounds of capability
after obtaining a medical report to clarify the likely length
of their absence. The smaller the business, the more the Tribunals
are prepared to accept that shorter periods of absence can
amount to grounds of dismissal under the capability heading.
In these circumstances, the employer is
still obliged to obtain a medical report giving a diagnosis
and the prognosis for the condition.
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