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Unfair Dismissal - Capability
By: Helen Gardiner
On: 10th February 2015 @ 13:00
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CAPABILITY
DISMISSALS
by
Helen Gardiner
hgardiner@st-Philips.com
Employment Rights Act 1996 (“ERA”)
Dismissal unfair unless:
• the employer can show that the reason (or the principal
reason) for the dismissal was a potentially fair reason.
Capability is a potentially fair reason for dismissal; and
• the tribunal finds that, in all the circumstances (including
the employer’s size and administrative resources) the
employer acted reasonably in treating that reason as a
sufficient reason for dismissal. That means that the
dismissal must be both procedurally and substantively fair.
Capability
Section 98(3):
- “Capability” means capability assessed by reference to skill,
aptitude, health or any other physical/mental quality
- “Qualifications” means any degree, diploma or other academic,
technical or professional qualification relevant to the position
Section 98(2) ERA:
A reason falls within this subsection if it:
(a) Relates to the capability or qualifications of the employee for
performing work of the kind which he was employed by the
employer to do
Capability
Fair procedure
Key elements:
• A proper investigation into the problem has taken place.
• Employee has been made aware of the problem and has been
given an opportunity to improve within a realistic timescale.
• Employee has been provided with appropriate support/training.
• Employee’s progress is reviewed during the review period.
• Employee is offered a right of appeal against the decision to
dismiss.
Capability
Acas Code of Practice on Disciplinary
and Grievance Procedures
Applies to dismissals for capability but NOT ill health.
Must be taken into account by tribunals.
ESSENTIAL READING!
Download at:
http://www.acas.org.uk/media/pdf/k/b/Acas_Code_of_Practice_1_
on_disciplinary_and_grievance_procedures-accessible-version-
Jul-2012.pdf
Capability
Setting the
standard
• Varies from role to role.
• Technical and subjective
aspects of role.
• Some requirements are
obvious.
• Make the employee aware.
• Use probation periods?
Capability
Appraisals are
important!
• Motivate staff.
• Evidence of performance
problems.
• Be honest, not unduly flattering.
• If inaccurate could hamper
future business decisions e.g.
redundancy.
Capability
Common examples
Capability
Lack of productivity/slowness
Inflexibility
Failure to establish good working relationships with
colleagues/customers
Is performance really the issue?
May be other issues that need to be addressed, such as:
• Ill health or disability;
• Problems with child care or caring responsibilities;
• Poor management;
• Harassment or bullying by a manager;
• Excessive workload leading to inability to deliver and stress.
Consider disabilities and Equality Act considerations,
particularly making reasonable adjustments.
Capability
Dismissing fairly
• Must show a reasonable belief in employee’s
incompetence at the time of the decision.
• Carry out a preliminary investigation.
• Keep notes.
• Investigate any matters arising.
• Consider whether to take disciplinary action.
• Invite employee to a formal meeting.
• Usual to give a warning and timescale for improvement.
Capability
Ill health
Usually a capability issue.
Could be “some other substantial
reason” dismissal if there is a
significant detrimental impact on
the business/performance.
Persistent unauthorised absences
may give rise to a conduct
dismissal.
Capability
Fair procedure
ACAS code does NOT apply.
Generally:
• Establish the true medical position.
• Consult with the employee.
Capability
Reasonableness - factors
• Nature of the illness.
• Prospects of returning to work.
• Likelihood of recurrence.
• Need for employer to have someone doing the work.
• Effect of absences on the rest of the workforce.
• Extent to which employee was made aware of the position.
• Employee’s length of service.
Capability
Long term absence
Likely to require further investigation into medical position
beyond sick notes.
Consider obtaining medical evidence – maybe from more than
one source.
How long can the employer be expected to keep the job open?
• Availability/cost of temporary cover.
• Sick pay.
• Admin costs.
• Size of organisation.
Capability
Persistent short-term intermittent absence
• Hard to predict if attendance will improve.
• If there is no underlying health condition, medical expert
unlikely to be helpful.
• Review pattern of absences and reason.
• Warn employee of the required improvement.
• If no improvement, consider dismissal.
Be cautious – wise for employer to satisfy itself that there is
no underlying health condition.
Capability
Exhausted sick
pay?
• May dismiss before sick pay is
exhausted.
• Only one factor in many.
• Financial provision, and does
not indicate the amount of
absence an employee is entitled
to.
• More important is the timing of
the return to work.
Capability
Procedure for claiming
1. Employee must contact Acas to see if the complaint can
be settled through Acas early conciliation.
2. If not settled, must issue a claim within 3 months minus
one day of dismissal (though limitation extended by
conciliation process).
3. At tribunal, if successful the employee may claim
reinstatement, reengagement or compensation.
Misconduct
Contact me:
Helen Gardiner
hgardiner@st-philips.com
Tel: 0113 244 6691
www.st-philips.com
Any
questions
?
Telephone: 0113 322 7240
Website: www.shorebird-rpo.com
Email: marketing@shorebird-rpo.com
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Unfair Dismissal - Capability Webinar Slides

  • 1. Unfair Dismissal - Capability By: Helen Gardiner On: 10th February 2015 @ 13:00 FREE WEBINAR Starting Soon
  • 2. Housekeeping “Please use the chat box for questions, thoughts and Debate”
  • 3. Applicant Tracking System (ATS) Careers websites Recruitment Support  Streamline your recruitment processes  Improve recruitment communications  Promote your employer brand  Reduce the costs of recruitment  Tighter control on recruitment decisions  Manage the ROI of recruitment  Attract better quality people, faster Recruitment Advertising
  • 4. Please note that the contents of this webinar do not constitute legal advice. CAPABILITY DISMISSALS by Helen Gardiner hgardiner@st-Philips.com
  • 5. Employment Rights Act 1996 (“ERA”) Dismissal unfair unless: • the employer can show that the reason (or the principal reason) for the dismissal was a potentially fair reason. Capability is a potentially fair reason for dismissal; and • the tribunal finds that, in all the circumstances (including the employer’s size and administrative resources) the employer acted reasonably in treating that reason as a sufficient reason for dismissal. That means that the dismissal must be both procedurally and substantively fair. Capability
  • 6. Section 98(3): - “Capability” means capability assessed by reference to skill, aptitude, health or any other physical/mental quality - “Qualifications” means any degree, diploma or other academic, technical or professional qualification relevant to the position Section 98(2) ERA: A reason falls within this subsection if it: (a) Relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do Capability
  • 7. Fair procedure Key elements: • A proper investigation into the problem has taken place. • Employee has been made aware of the problem and has been given an opportunity to improve within a realistic timescale. • Employee has been provided with appropriate support/training. • Employee’s progress is reviewed during the review period. • Employee is offered a right of appeal against the decision to dismiss. Capability
  • 8. Acas Code of Practice on Disciplinary and Grievance Procedures Applies to dismissals for capability but NOT ill health. Must be taken into account by tribunals. ESSENTIAL READING! Download at: http://www.acas.org.uk/media/pdf/k/b/Acas_Code_of_Practice_1_ on_disciplinary_and_grievance_procedures-accessible-version- Jul-2012.pdf Capability
  • 9. Setting the standard • Varies from role to role. • Technical and subjective aspects of role. • Some requirements are obvious. • Make the employee aware. • Use probation periods? Capability
  • 10. Appraisals are important! • Motivate staff. • Evidence of performance problems. • Be honest, not unduly flattering. • If inaccurate could hamper future business decisions e.g. redundancy. Capability
  • 11. Common examples Capability Lack of productivity/slowness Inflexibility Failure to establish good working relationships with colleagues/customers
  • 12. Is performance really the issue? May be other issues that need to be addressed, such as: • Ill health or disability; • Problems with child care or caring responsibilities; • Poor management; • Harassment or bullying by a manager; • Excessive workload leading to inability to deliver and stress. Consider disabilities and Equality Act considerations, particularly making reasonable adjustments. Capability
  • 13. Dismissing fairly • Must show a reasonable belief in employee’s incompetence at the time of the decision. • Carry out a preliminary investigation. • Keep notes. • Investigate any matters arising. • Consider whether to take disciplinary action. • Invite employee to a formal meeting. • Usual to give a warning and timescale for improvement. Capability
  • 14. Ill health Usually a capability issue. Could be “some other substantial reason” dismissal if there is a significant detrimental impact on the business/performance. Persistent unauthorised absences may give rise to a conduct dismissal. Capability
  • 15. Fair procedure ACAS code does NOT apply. Generally: • Establish the true medical position. • Consult with the employee. Capability
  • 16. Reasonableness - factors • Nature of the illness. • Prospects of returning to work. • Likelihood of recurrence. • Need for employer to have someone doing the work. • Effect of absences on the rest of the workforce. • Extent to which employee was made aware of the position. • Employee’s length of service. Capability
  • 17. Long term absence Likely to require further investigation into medical position beyond sick notes. Consider obtaining medical evidence – maybe from more than one source. How long can the employer be expected to keep the job open? • Availability/cost of temporary cover. • Sick pay. • Admin costs. • Size of organisation. Capability
  • 18. Persistent short-term intermittent absence • Hard to predict if attendance will improve. • If there is no underlying health condition, medical expert unlikely to be helpful. • Review pattern of absences and reason. • Warn employee of the required improvement. • If no improvement, consider dismissal. Be cautious – wise for employer to satisfy itself that there is no underlying health condition. Capability
  • 19. Exhausted sick pay? • May dismiss before sick pay is exhausted. • Only one factor in many. • Financial provision, and does not indicate the amount of absence an employee is entitled to. • More important is the timing of the return to work. Capability
  • 20. Procedure for claiming 1. Employee must contact Acas to see if the complaint can be settled through Acas early conciliation. 2. If not settled, must issue a claim within 3 months minus one day of dismissal (though limitation extended by conciliation process). 3. At tribunal, if successful the employee may claim reinstatement, reengagement or compensation. Misconduct
  • 21. Contact me: Helen Gardiner hgardiner@st-philips.com Tel: 0113 244 6691 www.st-philips.com Any questions ?
  • 22. Telephone: 0113 322 7240 Website: www.shorebird-rpo.com Email: marketing@shorebird-rpo.com Twitter: https://twitter.com/ShorebirdRPO Thank you!