Navigating capability issues in the workplace demands both empathy and procedural diligence. Gemma O’Connor explores how to address poor performance fairly

Your employees are human; just like anyone, their work performance may dip occasionally.

If this becomes an ongoing issue, an informal chat with the employee can often help shed light on what may be affecting their ability to complete their duties.

Once the cause is identified and the employee receives suitable support, their performance will hopefully improve. After this, no further action will be necessary.

However, if this informal approach does not work, it may be time to address the employee’s capability to do their job.

What is capability?

Capability in the context of employment law refers to an employee's skill, aptitude, health or any other physical/mental quality that allows them to complete their duties.

Employment law recognises that employers may need to dismiss staff who no longer have the capability to complete their work.

To understand whether an employee's poor performance may be due to their capability, you must ascertain if it is the case that they cannot do the work versus will not do the work. The latter may fall under the category of conduct.

Capability policy

A capability dismissal may be lawful if an employee does not have the capability, competence or qualifications to perform the work they are employed to do.

A capability policy clearly outlines how the business will address capability issues that arise in the workplace.

To do this, you will need to take steps to support your employees in working effectively.

An informal discussion with the employee will often prevent the need for formal disciplinary action. A mutually agreed performance management solution should be explored first to help the employee overcome any capability issues.

Performance-related capability dismissal

The procedure to establish the basis for the dismissal must comply with the rules of natural justice and the terms of your written disciplinary procedures. In competency cases, you must outline the nature of the performance issues you need the employee to improve on.

To determine whether a dismissal related to employee competency is fair, management should ask themselves if the employee is incapable of carrying out the job, and if so, do they have reasonable grounds to support that belief?

Before moving to dismiss on the grounds of competence, you must first highlight the performance issues to the employee and grant them an opportunity to improve. With the right training and support, the employee may turn things around.

Medical capability dismissal

In many cases, the incapability of an employee to continue performing their job may result from ill health.

Even if the employer's conduct is caused by ill health, dismissal will not necessarily be unfair, although it may also mean that the employer should take greater steps to avoid dismissal than would otherwise be the case.

Before dismissing someone on the grounds of medical capability, you should obtain detailed medical evidence confirming that the employee’s return to work or recovery is unlikely.

A dismissal based on medical capability must follow the principles of natural justice. You should:

• make sure you fully possess all material facts concerning the employee’s condition;
• ensure the employee receives fair notice that the question of a medical capability dismissal is being considered; and
• provide the employee with an opportunity to prove their case;
  • if the employee isn't capable after a medical expert deems them so, ensure you explore reasonable accommodations that could render the employee fully capable (for instance, changing hours of work, etc).

Unfair dismissal laws and capability

Most unfair dismissal claims arise when an employer fails to follow fair procedures prior to confirming a dismissal.

The Workplace Relations Commission will examine the following questions in an unfair dismissal claim, which are also applicable in cases involving capability:

• Did the employer believe that the employee was guilty of misconduct as alleged?
  • If so, did the employer have reasonable grounds to sustain that belief?
• Did the employer carry out as much investigation into the matter as was reasonable before dismissing the employee?
  • If so, was the penalty of dismissal proportionate to the alleged misconduct?

The best way to minimise the risk of unfair dismissal claims is to have thorough disciplinary policies and procedures in place and to follow them strictly before confirming a dismissal.

Gemma O’Connor is Head of Service at Penisula Ireland