Acas Capability Dismissal

EMPLOYMENT LAW TOPIC: DISMISSALS LECTURE 4 UNFAIR DISMISSAL Key topics. Rules for Conduct dismissals & ACAS Code of Practice. Basic award – Week’s pay. Maximum amounts – week’s pay & compensatory award. Compensatory award – heads of loss, including loss of statutory rights. Overlapping remedies. Application of topics from lecture 3. Critical discussion of need to. Furthermore, ACAS helps address individual complaints (wherein individuals complain against their employers regarding wrongful dismissal or any other issue) and provide the groundwork for making an employment tribunal claim. The ACAS Code of Practice. ACAS Code doesn’t apply to capability dismissals with no disciplinary component The EAT has confirmed that the ACAS Code of Practice on disciplinary and grievance procedures does not apply to ill-health dismissals where there is no allegation of misconduct.

Capability dismissal is a contentious issue and one that often ends up at an employment tribunal. This is because it's a rather fluid term. It's dependent on the performance levels of your business.

Dismissal on the grounds of capability

You can dismiss an employee for a variety of fair reasons. Capability is one of them. The term refers to a staff member's ability to perform their required responsibilities in their current role.

You may think they're incapable of performing the tasks required of them, while they feel they are performing adequately.

If you're thinking about conducting a dismissal, here are some factors you need to consider:

• Are there personal issues contributing to their work ethic?
• Do they have a disability that could affect their performance?
• Should you consider it as a conduct issue where carelessness, negligence, or lack of effort affects performance?
• Is your staff member affected due to a lack of knowledge, skill, or ability?
• Did you provide the employee with all the tools they need to do their job (e.g. training)?

As a first step in any capability scenario, providing you’ve tried to handle the issue informally first, you should write a letter to them. In this, state how they've failed to meet their performance objectives.

You should also add that you wish to conduct a meeting with them to outline steps to improve moving forward, and how you can help.

If the problem is due to insufficient training, or a similar factor, follow your company procedure to try and assist your employee.

Provide the staff member with the time to improve. This is because the relevant support will then allow you to re-assess their situation. If this doesn't work, you have the right to dismiss them on capability grounds.

In the event of illness

But what about dismissal on grounds of capability due to ill health?

If the employee is incapable of performing the tasks required of them because of ill health, you need to handle the situation sensitively.

If they have a disability, you can’t treat them less favourably on the basis of this.

If an employee can't perform their duties, and you have made reasonable adjustments to remove any disadvantages, it may be fair to dismiss them.

You should consider all options before conducting a capability dismissal on the grounds of ill health, including:

• Getting a medical report from their GP.
• Arranging an occupational health assessment.
• Making reasonable adjustments if possible.
• Allowing sufficient time to see whether their health improves.
• Giving all available company support.

Medical capability dismissal isn’t by definition an unfair dismissal, but if handled incorrectly, this can lead to an unfair dismissal claim and large payouts.

Unfair dismissal for capability and pay

The cap for an unfair dismissal payout in this area currently stands at £98,922 (or unlimited compensation for a discriminatory dismissal).

If you handle the situation correctly, this can go some way to ensuring you won't need to make this payout. If you're looking for guidance on conducting a capability dismissal, Acas has guidance on the issue.

For in-depth, tailored advice, speak to a Croner expert. You can call us today on: 01455 858 132.

Dismissing someone fairly

Before you dismiss an employee, you should:

• believe you have a valid reason for dismissing them
• follow a full and fair procedure in line with the Acas Code of Practice on disciplinary and grievance procedures
• make a decision that's balanced, consistent and as fair as possible

Acas Capability Dismissal Vs

If you do not, the employee could make a claim for unfair dismissal, even if the reason you dismissed them was valid.

The procedure you follow will be taken into account if a case reaches an employment tribunal.

Dismissal for conduct or capability reasons

You should handle issues of unacceptable or inappropriate behaviour ('misconduct') or performance ('capability') in line with the Acas Code of Practice on disciplinary and grievance procedures.

You can use the disciplinary procedure step by step guide to help you through the process.

If the employee cannot do their job or is performing badly for a reason that's not their fault, you should still handle the issue in line with the Acas Code of Practice.

Gross misconduct

Gross misconduct is when an employee has done something that's very serious or has very serious effects.

Examples could include:

• fraud
• physical violence
• serious lack of care to their duties or other people ('gross negligence')
• serious insubordination, for example refusing to take lawful and reasonable orders from a supervisor

Your workplace might have its own policy or rules with other examples of gross misconduct.

Dismissal because of long-term illness

Dismissal should be a last resort after you've tried other ways to support the employee and help them get back to work. This could include making any reasonable adjustments if they have a disability (this includes some long-term health conditions).

It may be fair for you to dismiss someone on long-term sick leave, depending on the circumstances.

For example, you may be able to dismiss someone fairly if:

• you've considered all other options
• it's not possible for the employee to do their job
• the person not being able to work has a significant impact on your business

You must investigate fully and have a valid reason for dismissal. The employee could make a claim to an employment tribunal if they think they've been unfairly dismissed.

Dismissing someone because they're disabled (this includes some long-term health conditions) is unlawful discrimination.

Giving the reasons for dismissal

If you dismiss an employee, you must tell them:

• why they've been dismissed
• when their employment contract will end
• their notice period, if there is one
• their right to appeal the decision

It's a good idea to put it in writing.

Acas Capability Dismissal Rules

When you must put the reasons in writing

You must put the reasons in writing for an employee who's pregnant or on maternity leave, regardless of how long you've employed them.

Other employees have the right to ask you for a written statement giving the reasons for their dismissal if they have:

• 'employee' employment status
• been employed by you for 2 years

If they ask, you must give them the reasons in writing within 14 days.

Telling other people at work

Acas Capability Dismissal

Acas Capability Dismissal Meaning

You should respect the confidentiality of the person who's been dismissed when you tell colleagues and clients that they've left. For example, any outcome of a disciplinary procedure must remain confidential.

Acas Capability Dismissal Letter

Find out more about talking to staff after a disciplinary procedure.

Settlement agreements

A settlement agreement is sometimes used when an employer and employee agree to end their employment relationship because they both agree it's no longer working. This can include some dismissal situations.

Find out more about settlement agreements (PDF, 512KB, 66 pages).

If you're thinking about using a settlement agreement, you should get legal advice.