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There are many reasons for firing employees. Two of the most common ones are capability and conduct. From an employer’s perspective, if you want to handle dismissals right, you can start by treating capability and conduct separately. You need to recognise the difference between warning someone for a capability matter and warning him for his conduct. If you fail to distinguish between the two, you are much more likely to run the risk of a successful unfair dismissal application. Some organisations have separate disciplinary procedures for dealing with capability and conduct, but this is a matter of choice for the individual organisation.
This means that if your employee already has a warning for misconduct, and then demonstrates a lack of capability, you should issue him with a first warning for the capability matter, quite separate from the misconduct.
Capability (‘Can’t’)
Dismissal on grounds of capability will be for one of three reasons:
- Lack of or loss of an essential qualification to do the job
- Lack of ability or skill – this can be repeated minor incompetence or one serious act of incompetence (poor performance)
- Lack of capability because of ill health.
If an employee loses or fails to achieve a qualification necessary to do his job, he may be dismissed on grounds of capability. However, this is not automatically fair and you should not dismiss until you have explored all the alternative ways of trying to accommodate him. So, for example, if a sales representative whose job it is to travel to clients or prospects loses his driver’s licence for a year, you should consider the options. Can he work from home or from the office? Can his work be adjusted so that he travels by public transport? Can he have a driver? Can he do another job in the business while his licence is withheld?
Poor work performance
Under-performance is one the most frequent reasons for discipline and one of the least well handled. It’s your job to show that poor performance is the reason for the dismissal and that you reasonably believe your employee is not capable of working to the standard you require. It would not be fair to dismiss for a first breach if the incompetence is minor. It has to be really serious: for example, a life-threatening action or omission.
You must help the employee by doing everything reasonable to help him meet the required standard of performance. This normally takes the form of coaching, re-training, giving a reasonable amount of time to improve (two months rather than two weeks) and generally supporting the employee. You must warn the employee before dismissal of the consequences of failure to improve.
Ill health
It is fair to dismiss an employee who is no longer capable of working because he is too unwell to do so. If your staff receive company sick pay as a contractual benefit, the dismissal should not become effective until the sick pay is exhausted or paid in lieu. In cases of long-term ill health, you should concentrate on investigating the medical facts and consulting with the affected employee about the available options. In these circumstances, it is not appropriate to go through any lengthy disciplinary or warnings procedure.
Conduct (Won’t’)
Dismissal for a reason relating to the conduct of an employee will be fair, provided the procedure is properly followed. Examples of misconduct:
- poor timekeeping;
- poor attendance;
- theft;
- fighting, abusive or intimidating behavior;
- consumption of alcohol while on duty.
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