Employment law recognises that employers may sometimes need to carry out a dismissal on grounds of capability.
A capability dismissal is permissible if an employee doesn't have the capability, competence, or qualifications to perform the work which she-he is in employment to do.
Dismissal on grounds of capability due to ill health
It can be frustrating for employers if an employee is regularly absent for health reasons. Absence due to ill health may entitle you to carry out a dismissal due to capability but it’s important that you follow fair procedures to avoid the risk of carrying out an unfair dismissal due to capability.
You can divide capability cases involving absences due to health issues into short-term and long-term categories. We'll discuss these in the following sections.
Dismissal due to capability—short-term absence due to ill health
Deal with absences due to short-term illnesses through your disciplinary procedures. A dismissal on capability, medical grounds must follow the principles of natural justice. Employers should:
- Make sure they’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).
Dismissal due to capability—long-term absence due to ill health
Cases involving long-term absences should largely follow the same advice set out above. To support a dismissal on grounds of capability due to long-term absences, you should obtain detailed medical evidence confirming that the employee’s return to work is unlikely.
Consider what qualifies as an unreasonable absence on a case by case basis and will depend on the nature of the work and the effect of the absences on the workplace.
If there's a conflict between the medical evidence presented by both parties in relation to the most likely date of return to work, you will need a third independent opinion before confirming an ill health capability dismissal.
Unfair dismissal law in respect of capability and misconduct issues
The majority of unfair dismissal claims relate to dismissals for misconduct. The Workplace Relations Commission 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 an employer satisfies all of these questions positively then the dismissal will be a fair one.
It’s for this reason that it is vital to have thorough disciplinary policies and procedures in place.
Dismissal on capability or competency grounds
Incapability dismissals tend to relate to medical or health issues which the employee has. It may also be necessary to dismiss an employee on competency grounds for persistent poor performance.
The test to determine whether or not a dismissal related to employee competency is fair is largely similar to the procedure used for misconduct.
- Does the employer hold an honest belief that the employee is incompetent to carry out the job?
- If so, does the employer have reasonable grounds to sustain that belief?
The procedure followed here should mirror the one used in misconduct dismissals, accord with the rules of natural justice, and comply with the employer’s disciplinary procedure.
There is one key difference in competency cases which requires you to outline the nature of the unacceptable behaviour that you need the employee to stop.
To dismiss on the grounds of competence, you must first highlight the unacceptable performance to the employee and assist the employee with improving his/her deficiencies in performance through supportive measures.
Need more assistance?
If you need to dismiss an employee, it is vital that you follow fair procedures to avoid a costly unfair dismissal claim. Speak with an employment law expert today on 0818 923 923.
