Fair Reasons for dismissal

Under the Employment Rights Act 1996 (“ERA”) there are five potentially fair reasons for dismissing an employee. i.e.:

• Capability;
• Conduct;
• Redundancy;
• Breaking a law; or
• Some other substantial reason.

The employer is required to state the reason for the dismissal in it’s IT3 form which is the Employer’s formal response to the employee’s unfair dismissal claim in the Employment Tribunal. It is not enough for employers to show the reason for dismissal falls within one of the above categories. Employers must follow fair and reasonable procedures before arriving at the decision to dismiss. The procedures must be in line with the ACAS code of conduct. In addition the actual decision to dismiss instead of some other alternative, must be with the range of reasonable responses that a reasonable employer would make in similar circumstances. From example if an employee is found to have been dishonest in feigning sickness it may be fairer to give a warning rather than immediate dismissal, although dishonestly is a potentially fair reason.

a) Capability
This relates to the employee’s ability to undertake the job. Defined by the Employment Rights Act as being "assessed by reference to skill, aptitude, health or any other physical or mental quality" and qualifications as "any degree, diploma or other academic, technical or professional qualification".
Qualification:
Does the job require a qualification and does the employee have such qualification.
Incompetence:
Repetition of minor incidents or a single very serious incident. Was the employee trained to carry out the task? Did the employee receive any previous warnings for such incompetence?
Health:
Is the employee’s health preventing performance of the job? Is the employee generally ill on a regular basis? How long was the employee off work and were there any other jobs that the employer could have offered?
Usually most employers will have assessed the employee’s suitability during an initial probationary period. For longer term employees difficulties can arise in showing that the employee is not capable. It may arise due to an employee loosing interest in the job, or if the job changes and requires skills which the employee is not competent in.
Examples of situations in which an employee has been reasonably dismissed on this ground include:

• a slow workers;
• an inflexible and inadaptable worker;
• a manager who failed to establish good working relationships; and
• a worker who could not meet management standards in performance.
• Obviously if an employees becomes incapable due to there own carelessness then it may amount to misconduct rather than capability. Proving a lack of skill" can be difficult for an employer to establish and can be helped if there is previous criticisms of the work and an effort to bring the employee up to scratch such a training, support etc. Warnings must in all case be given.
• A tribunal will look at all the circumstances and therefore if an employee has glowing appraisals and references this would be inconsistent with a dismissal and the employer would then have an uphill struggle in persuading the Tribunal that capability was a real issue.