Dismissal on the Grounds of Capability

The team at A&L Goodbody discusses dismissal on the grounds of capability.

The team advises on how employers should go about following the three-step process and highlights other considerations that should be observed when dealing with a dismissal on grounds of capability. 

In this video, I'm going to be discussing when an employer needs to dismiss an employee on the grounds of their capability.

Employees have the right not to be unfairly dismissed, but dismissing an employee on the grounds of their capability is a potentially fair reason under the Employment Rights (Northern Ireland) Order, and Article 130(a) deals with this issue.

When somebody is going to be dismissing an employee on the grounds of their capability, the onus is always on the employer to prove that it has dismissed fairly, and so to help with that, you'll always look to see what has gone on in the background.

• Have there been annual appraisals?
• Have there been annual reviews?
• Has someone's performance been measured over time?

We'll also look to see if there is a policy in place to deal with performance issues, and if there is a policy, and there probably should be, have they abided by that policy? And so an employer, yes, they can dismiss an employee on the grounds of their capability. There's a three-step process.

Three-step process

Step 1

Step 1 is a letter to the employee. It confirms that the employee has failed to meet objectives. It also outlines the nature of those failings, and [notifies the employee that] they'll be called to a meeting to discuss those performance issues.

Once the letter has been received and the meeting has been arranged, the meeting will take place, and in that meeting, they will outline the areas of concern and areas for improvement. This meeting shouldn't be where an employee is dismissed. There needs to be an opportunity for the employee to be able to improve, and so in order to be able to set that out appropriately, we would always advise that an employer uses SMART objectives. 

Those objectives, therefore, need to be ‘specific’.

• What are the areas for improvement?
• What does the employee have to do to demonstrate that improvement?

They need to be ‘measurable’

• How do we measure those?
• What sort of matrix are we going to use or how is it going to be recorded?
  Those are things that need to be given thought.

'A' is ‘agreed upon’, and therefore it's always advisable that whenever we are discussing smart objectives, that the employer and employee agree upon what needs to be done, and what needs to be met and understand how it's going to be measured. Those need to be agreed upon.

'R' relates to ‘realistic’. Are these [objectives] achievable, or is this simply a process which is putting barriers in the way of the employee such that there's no way that they will ever meet that standard? Are they ‘realistic’?

And then 'T' is ‘time bound’.  A process for improvement shouldn't go on forever, but at the same time it shouldn't be too short a period, where an employee doesn't really have a chance to be able to demonstrate improvement.

Therefore, we would say that in any kind of performance improvement plan or process, it should be a minimum of four to six weeks. Anything shorter calls into question the legitimacy of the process.

After that period of time, you'll normally have a further review meeting, and at that meeting, it may be the case that targets have been met and, therefore, there's no reason to continue on with any process.

Or, as an alternative, if there has been a failure to meet the objectives as set, do we need to have a further period of time which allows the employee to improve a little further. Often, we would advise that this is the best course of action to allow a further period of improvement or attempt at improvement.

Step 2

If at the end of that there's still a feeling, in terms of the objectives which have been agreed and have been set out clearly for them. If there has been a failure, then we would normally advise that there's a further meeting with the employee.

A letter should go before that meeting to confirm that one of the outcomes of the meeting may be that their employment is terminated on the grounds of their capability.

If at that meeting it's agreed that there has been a failure and there's no further period of time to improve, then we confirm that position in writing. It confirms that the dismissal has been confirmed and the reason is the capability.

Step 3

Within this process is also the right to appeal. Employees will have the right to be accompanied at [that appeal] and, according to our policy or procedure, it should also be a different person who's heard the capability hearings, so they have the opportunity to be able to have a fair hearing in terms of the appeal.  Also, for employees who have more than one year's service, there's also the ability for them to bring a tribunal claim for unfair dismissal, and therefore, in all these matters our process needs to be absolutely clear and we need to have applied our policy fairly.