Employment Law Capability Problems

There are two major aspects to the term ‘capability problems’ concerning employees – the first is employees with health issues and the second, more difficult area concerns employees who are underachieving.

Employees with health problems Whilst it may impact directly on the effectiveness of a company’s performance, employees with health problems and are absent from work have to be dealt with carefully. Short-term illnesses are covered financially through statutory sick pay and should not impact a business’s operations to a serious extent. However, long term illnesses present a different problem – the likelihood or otherwise of the employee returning to full-time work. Employers are entitled to dismiss an employee who is absent from work for a prolonged period as long as certain procedures are followed. This is known as a capability dismissal, and employers have to take extreme care when pursuing this avenue and ensure that every procedure is followed to the exact letter of the law to avoid accusations of discrimination on the grounds of physical ability.

A report from the employee’s doctor stating a medical opinion on the likelihood of the employee’s ability to return to work within an acceptable time period will be required. If the GP confirms that the employee is unlikely to return to work in the near future, the employment contract can be terminated.

However, a great deal of attention has to be given to the issue of disability. It is illegal to discriminate against employees on the grounds of disability and if an employee is disabled, reasonable adjustments have to be made to the working environment to accommodate that disability, including help with transport, flexible working and even specially adapted desks or chairs.

Under-performance capability problems The ability of an employee to carry out their job to acceptable standards is usually part of the initial contract of employment. To avoid any issues further down the line, it is essential that employers clarify exactly what they expect of their employees from day one, and discuss at regular intervals performance, aptitude and any changing situations that may affect the employee’s ability to carry out their job.

But if an employee is struggling to meet targets or employers notice an overall decline in the standard of their work, the first step is to talk directly to the employee. They may not realise that their work is below standard, or there may be concerns or even personal issues that are affecting their ability to work to required levels. It is at this point that the employer’s ‘people skills’ come into play. For example, an older employee who is told that their performance is not up to standard may feel that the employer is unfairly discriminating against them on the grounds of age, leaving the employer open to an age discrimination claim. It may be that an employee simply needs more support in their role, particularly if that role has changed, or needs further training.

However, if there is a genuine problem with an employee’s performance and no discernible reason can be found for the under-achievement, further consultation with the employee is necessary to draw their attention to this. The most common cause of action from thereon is to establish a trial period where the employee is given specific, achievable targets within a time frame, giving them a chance to show the employer that they are capable of carrying out the job to an acceptable standard. If they fail to meet these targets, it may be that the only course of action left open to the employer is the termination of the employee’s contract of employment.

Capability problems have to be handled very carefully, especially where depression is a reason for under-performance. Depression is a disability, and one that thousands of ordinary people suffer from on a regular basis. If an employee is underachieving due to depression, they need support and help rather than disciplinary action. The workplace, whilst still maintaining productivity, has to be a caring environment for everyone in it, both employers and employees alike.