From time to time, you might encounter an employee displaying decreased work performance. They may be struggling to meet the standard of work performance that you expect of them.
If so, consider it a matter of ‘capability’. The matter also applies if the employee’s unable to fulfil their duties because of ill-health or injury.
When dealing with a case of ill-health or injury, take a compassionate and positive approach. Work with the employee to identify areas where they may be failing to meet necessary standards. Once that’s done, establish how they can improve and what support you can provide…
What is capability?
Capability is classed as anything related to an employee’s skill, aptitude, health, or any other physical/mental quality. Employment law recognises that employers may sometimes need to carry out a dismissal on grounds of capability.
You can dismiss an employee if they can’t perform the job you employed them to do. Even if they can still do some of their duties, that doesn’t mean a tribunal will find their dismissal unfair.
Where an employee is good at their job, you can still dismiss them on grounds of capability based on their performance. For example, if they’re uncooperative, they may not get along with clients. A capability dismissal is permissible if an employee doesn’t have the capability, competence, or qualifications to perform the work which they’re employed to do.
Capability policy
The purpose of a capability policy is to set out the obligations of the business and employees in addressing capability issues that arise in the workplace.
It’s advisable to support and enable employees to work effectively. Take steps to address any issues that arise before taking disciplinary action, which should be the last resort. A performance management solution should be deployed to assist an employee in addressing capability issues.
A capability policy should link in with other related policies, such as induction, training and development and the appraisal scheme. It also relates to the disciplinary policy.
Capability procedures
Due to the nature of capability and health, there are different procedures for each issue. For instance, two employees may be struggling with performance and health respectively. You must treat each employee and issue differently. Treating both issues the same way would leave you guilty of an unfair procedure.
So, how should you approach the two main types of capability dismissals?
Capability due to performance
Issues relating to performance should be drawn to your attention at an early stage. Expected improvements, with measurable targets, should then be laid out.
The employee should feel supported in improving their work performance. They should also understand the potential consequences if improvement isn’t attained within a certain timescale.
A performance management system should be put in place to help you monitor and review the employee’s performance. It may be that the employee needs extra support such as training to achieve the expected standards of work.
Capability due to ill health
It can be frustrating if an employee is regularly absent for health reasons.
Absence due to ill health may entitle you to carry out a medical capacity dismissal. But it’s important that you follow fair procedures to avoid the risk of carrying out an unfair dismissal.
Capability issues because of ill health require a unique procedure. The first step is to establish the medical facts, which should be done through obtaining a medical report. Advice should then be sought on how to proceed with an ill-health capability dismissal.
Performance-related capability dismissal
A capability dismissal on the grounds of performance is allowed if an employee doesn’t have the capability, competence, or qualifications to perform the work which they are employed to do.
That could mean dismissing an employee on competency grounds for persistent poor performance. The test to determine whether a dismissal related to employee competency is fair is similar to the procedure used for misconduct:
- Do you believe that the employee is incompetent to carry out the job?
- If so, do you have reasonable grounds to sustain that belief?
The procedure followed here should mirror the one used in misconduct dismissals. The procedure must comply with the rules of natural justice and your disciplinary procedure.
There is one key difference in competency cases, however. You must outline the nature of the performance issues that you need the employee to improve.
To dismiss on the grounds of competence, you must first highlight the performance issues to the employee. You must then assist them with improving their deficiencies through supportive measures.
Medical capability dismissal
To support dismissal on the grounds of medical capability, you should obtain detailed medical evidence confirming that the employee’s return to work or recovery is unlikely.
It may be the case that there’s a conflict between the medical evidence presented by both parties in relation to the most likely date of return to work. In this event, you’ll need an independent opinion before confirming an ill-health capability dismissal.
A dismissal on medical capability must follow the principles of natural justice. You should:
- Make sure you’re in full possession of all material facts concerning the employee’s condition.
- Ensure the employee receives fair notice that the question of a medical capability dismissal is being considered.
- Provide the employee with an opportunity to prove their case.
- If the employee isn’t capable after a medical expert deems them so, ensure you explore reasonable accommodations that could render the employee fully capable (for instance, possible alternatives include changing hours of work).
Unfair dismissal laws and capability
Most unfair dismissal claims relate to dismissals for misconduct. The Workplace Relations Commission (WRC) will examine the following questions in an unfair dismissal claim:
- Did the employer believe that the employee was guilty of misconduct as alleged?
- If so, did the employer have reasonable grounds to sustain that belief?
- Did the employer carry out as much investigation into the matter as was reasonable before dismissing the employee?
- If so, was the penalty of dismissal proportionate to the alleged misconduct?
If you can satisfy these questions, the dismissal will be a fair one. It’s for this reason that it’s vital to have thorough disciplinary policies and procedures in place.
