capability
The management of poor performance is discussed elsewhere in this Guide ( Managing performance ). In summary, in order to act reasonably in dismissing an employee for poor performance, a company should ensure that, before deciding to dismiss, it had:
- made clear to the employee the standard of performance that was expected and how he or she was falling short of that standard;
- cautioned the employee on what the consequences might be if he or she failed to improve;
- consulted with the employee about the reasons for his or her poor performance;
- given the employee a fair opportunity to improve;
- provided the employee with appropriate support and training to help him or her reach the required standard;
- considered whether the employee could be moved to another job that was more appropriate for someone of his or her level of ability;
- followed the statutory minimum dismissal procedure ( minimum dismissal procedures ); and
- reasonably concluded that dismissal was appropriate.
The management of sickness absence is covered elsewhere in this Guide ( Managing performance ). In summary, a company that dismisses an employee for a poor sickness absence record should be able to show that, before deciding to dismiss, it had:
- consulted with the employee about his or her absence record, the reasons for it and the impact it was having on the company;
- made clear to the employee the possible repercussions of his or her sickness absence record for the employee's continued employment;
- gathered medical evidence on the employee's current condition and on when he or she would be fit to resume work (it may not be necessary for unfair dismissal purposes to obtain medical evidence in cases of intermittent, unrelated absences, but it is still advisable to do so in order to avoid liability for disability discrimination);
- considered whether there was any other work that it could offer the employee that was suitable for the employee to do, if the employee's condition made it impossible for him or her to return to his or her original job in the foreseeable future;
- followed the statutory minimum dismissal procedure ( minimum dismissal procedures ); and
- reasonably concluded that the impact that the employee's absence was having on the business could no longer be accepted.