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Esther Smith

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Ask the expert: Dismissed on capability grounds


An employee, who was signed off work due to stress and depression, was dismissed on capability grounds after 10 years’ employment. Martin Brewer and Esther Smith advise if this was fair.


The question:

I have been working for a company for just under 10 years and just before Christmas, I went off work sick, due to a death in the family. My father then turned alcohol dependant and I was off work with stress and depression and have been off work until now, with doctor’s notes provided every two weeks. I have seen the work occupational health and have also been attending absence review meetings with work, but missed the last one as I felt that I had nothing different to tell them, but didn’t let them know that I wasn’t attending.
I then received a letter through the post saying that the company I worked for had terminated my contract on the grounds of capability and that I had five days to appeal. I believe that no disciplinary procedures were followed prior to my dismissal, and I wasn’t asked to attend any capability hearings. Do you think that I have grounds for appeal and do you think that this is worth pursuing?

Legal advice:

Martin Brewer, partner, Mills & Reeve

You don’t say when you were dismissed and for litigation purposes that may be significant since if you were dismissed before 5 April your dismissal will have been automatically unfair. Since you have been offered an appeal you would have 6 months from the date of dismissal to bring a tribunal claim should you wish to. More generally an employer must act reasonably in dismissing on the ground of capability and this means two things: following a fair procedure and that dismissal is reasonable in all the circumstances including in the light of relevant medical evidence.
It is possible, and not necessarily unfair, to dismiss an employee in their absence if, for example the employee simply fails to turn up to a dismissal meeting without any or any good reason. So if it was clear that the last absence review meeting was going to discuss dismissal and you failed to turn up you really only have yourself to blame. On the other hand if there was no indication that you might be dismissed at or following this meeting then to dismiss in those circumstances is clearly unfair. It’s not clear what medical evidence was available to your employer but if they did not have up to date medical evidence that too may render the dismissal unfair (assuming ‘capability’ here means sickness absence and not some other performance issue).
You should appeal if you want your job back. The question you need to ask is whether you feel that you would want to work for an employer who would treat you in such a cavalier manner as your question suggests. If you do then of course you should appeal. If you feel that trust and confidence has been destroyed then consider if re-employment is really what you want. Tactically you also need to consider this-at the moment, on the face of it, your employer has acted unfairly in dismissing you in the way they did and you would seem to have a pretty good chance of a successful unfair dismissal claim. If you decide not to appeal because you have been treated so poorly then you are unlikely to be criticised by a tribunal. However, if you appeal you give your employer an opportunity to correct their mistakes at dismissal stage and to follow a fair procedure thus weakening any claim you may have. So, I reiterate, only appeal if you really want your job back.

Martin Brewer can be contacted at [email protected] . For further information, please visit Mills & Reeve.

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Esther Smith, partner, Thomas Eggar

An employer can validly and fairly terminate an employee’s contract of employment on the grounds of capability (i.e. their lack of capability to perform their contractual duties due to on going ill health). However in order for such a dismissal to be fair, the employer needs to have consulted with the employee about the proposed dismissal and also to have based their decision to dismiss on up to date medical information.

Therefore from what you say I do believe that you should be appealing the decision to dismiss on the basis that no procedure has been followed, and it appears that no medical opinion on your current state of health and your prognosis for a return has been sought. It may well be the case that if an opinion was sought from your GP or specialist it would have confirmed that you would be fit to return to work in a relatively short period of time.
However if there is absolutely no prospect of a return to work in the near future then an appeal is probably going to be a waste of time, as even if you can show that they have failed procedurally, if they would have good grounds to dismiss you having followed a fair procedure, your claim will not be likely to succeed.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.


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