The Employment Rights Act gives five potentially fair reasons for dismissal, one of them being capability.

This means that an employee may no longer be capable of fulfilling their job role for a multitude of reasons: lack of skills or qualifications, or because of ill health or other physical or mental reasons.

Dismissing An Employee For Incapacity - Medical Evidence

When you are contemplating dismissing an employee due to incapacity, you should ensure that you gathered as much information as you can.

It is best to check the employee’s contract of employment to ascertain to what extent you as an employee will be entitled to obtain medical evidence, or get a report on the employee in question.

Evidence may include advice from occupational health specialists, who ideally will produce a report detailing the nature of the condition, whether it constitutes a disability and what reasonable adjustments should be considered.

You should see the contents of the medical report, and their condition with the employee and how they believe it relates to their work, and what adjustments they think would be appropriate.

It is vital that you seek advice from an employment law specialist, ensuring that the procedure you follow is fair.

Dismissing An Employee For Incapacity - Consultation

The need to consult is essential with a capability dismissal.

If you are considering dismissing due to incapacity, you should have a capability meeting with the employee in question, giving them the opportunity to put forward any alternative suggestions or any points they wish to make before a decision is made.

An employee does have the right to be accompanied by a colleague or trade union representative to a capability meeting.

If you do decide to dismiss, the employee must be afforded the right of appeal.

To show that the dismissal was fair and all options have been considered you should be able to answer the following questions:

  • How important is the employee in question to your business and what is the impact of their absence?
  • How much is it going to cost to continue dealing with their absence?
  • Can you offer an alternative job role to avoid dismissal?
  • How long have they worked for you?
  • How have you treated other employees in a similar situation?
  • Is the medical evidence up to date and have you reviewed it?

The decision to dismiss is an employee due to incapacity, is ultimately a managerial decision, not a medical one.

Usually, the decision to dismiss due to incapacity comes after a long period of sickness absence. While understandably, you cannot wait indefinitely for someone to return, it is not a decision that should be taken lightly or rushed.

You should get medical updates regularly and review any reasonable adjustments that could be made. When it is clear that a return to work is unlikely, then you may be able to dismiss the employee fairly.

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.

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