Considering Employee Capability



Relevant Legislation:


- Employment Rights (Northern Ireland) Order 1996.

- Employment (NI) Order 3002 (Dispute Resolution) Regulations (NI) 2004.


Relevant Case Law:

- E Jolly v Royal Berkshire NHS Foundation Trust [CRN: 3324869/2017].


Article 130 of the Employment Rights (Northern Ireland) Order 1996 in paragraph 2 specifies the reasoning for fair dismissals and this encompasses both capability and conduct. Paragraph (2)(a) sets out the circumstances in which constitute a capability procedure commencing, it includes:


“Capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality,”


If the abovementioned is fulfilled, then the threshold is set taking into consideration the size and administrative resources of the business as to whether the employer acted reasonable in dismissing the employee. Capability dismissals falls into two groups consisting of employees poor performance and employee’s ill health.


When engaging in a capability procedure it is important to follow all three steps of the statutory disciplinary and dismissal procedure set out in schedule one of the Employment (NI) Order 3002 (Dispute Resolution) Regulations (NI) 2004. This includes a written invitation that include the grounds for potential dismissal, a meeting to take place (including the right of accompaniment) and an appeal.


Common forms of capability can include a lack of productivity, speed, constant mistakes and/or missing targets, poor work quality, failure to establish good working relationships with colleagues or customers and inflexibility. If one of these categories are applicable its paramount that you have the requisite evidence to establish the existence of same. This will be through productivity reports, customer complaints, performance appraisals and performance review/improvement plans.


It is essential that an employer follows their standalone capability procedure or in the absence, the disciplinary procedure. It would not be recommended that the employee be engaged in capability procedures for a one-off event. The employee should be provided with the appropriate support, training and guidance in order to assist them in improving. Dismissal should be a last resort but if it is the final step then the employee must be offered the right to appeal.


In the case of E Jolly v Royal Berkshire NHS Foundation Trust the employee was dismissed for a “catastrophic failure in performance.” It was found that the employee was unfairly dismissed and discriminated against on the grounds of age and disability as they failed to offer prior warnings didn’t provide adequate training and failed to offer an appeal hearing. This case shows the importance of previous sanctions and training being offered when carrying out a fair capability procedure.


With long term sick absence there is even more of an importance to follow the correct procedure as if not followed a claim could be founded for disability discrimination. Best practice would state that a period of absence under 12 months should not be dismissed for ill health on the basis of capability. Occupational health is critical in considering whether an employee is likely to return to work in the near future and an assessment on whether they are capable of carrying out their job role to the satisfactory level expected.


Giving all of the above it is paramount to conclude the main points when engaging in a capability procedure is to ensure that any decision taken can be justified. An employer must ensure they have given adequate opportunities for the employee to improve and be evaluated holistically, inclusive of the wider business context and considering the size and resources of the organization.


Capability is complex and should be based on data and Key Performance Indicators. It can ultimately be summed up in one sentence, the more robust a process that an organization follows, the less likely a claim would succeed in Tribunal.


See also: Capability Procedures


Claire Louise Mooney - Legal Consultant

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