Falconers Law

There are 2 different types of capability issues, the first relates to health and the other under achieving.

Capability and Ill-health

Short term illnesses should not have a serious impact on the business’s day to day running and will be covered financially by statutory sick pay. This may be more difficult for a small employer. Long term illnesses can cause a different issue with the problem of the employee not being able to return full time or even at all after a lengthy time off. Employers can dismiss an employee who is not present at work for a long period of time as long as the correct procedures and rules are followed. Employers have to be mindful that they do everything above board to avoid any unnecessary legal claims for discrimination. An up to date medical report is often necessary, with a view on whether the employee will be able to return to work or not. This may be from your GP or a separate Occupational Health Expert. Depending on the medical evidence available dismissal is an option. It is against the law to discriminate against an employee with a disability. If a worker is disabled, arrangements (“reasonable adjustment”) may have to be made to help the employee.

Examples of reasonable adjustments:

• making adjustments to premises
• providing information in accessible formats
• allocating some of the disabled person’s duties to another worker
• transferring the disabled worker to fill an existing vacancy
• altering the disabled worker’s hours of work or training
• assigning the disabled worker to a different place of work or training or arranging home working
• allowing the disabled worker to be absent during working or training hours for rehabilitation, assessment or treatment
• giving, or arranging for, training or mentoring (whether for the disabled person or any other worker)
• acquiring or modifying equipment
• modifying procedures for testing or assessment
• providing a reader or interpreter
• providing supervision or other support
• allowing a disabled worker to take a period of disability leave
• participating in supported employment schemes, such as Workstep
• employing a support worker to assist a disabled worker
• modifying disciplinary or grievance procedures for a disabled worker
• adjusting redundancy selection criteria for a disabled worker
• modifying performance-related pay arrangements for a disabled worker

Contact Falconers Law for advice on what steps you can take and the options available to you.

Capability and Under Achievement

Under achieving issues could arise at any point in the employment. The standards to which an employee would be outlined in the contract of employment so to avoid any later problems, employers should make employees aware of standards and what they expect from the employees at the beginning of employment.

If employers are noticing problems in employees achieving the set standard of work, then the first point should be a discussion with the employee. Give the employee the chance to explain why they are having problems with the work. The employee may be unaware that their work is sub-standard or maybe have personal problems that are causing the work levels to drop. The employer must be careful at this point not to discriminate, for example if an older employee is struggling and their standards drop they may have grounds to claim for discrimination on the basis of age. It might simply mean that they just need extra help with something if the work load has increased or changed.

If the employee is still under achieving set goals and work load, then the result may be the dismissal of the employee. Employers have to be very careful on which grounds the dismissal is used as they could a legal claim against them for unfair dismissal or discrimination.

Contact Falconers Law for advice on what steps you can take and the options available to you.