Capability dismissal meaning

This flowchart outlines the steps an employer should take once a performance or capability concern is identified, including collecting key documents such as the contract of employment and appraisal records, considering mediation, appointing who will carry out performance monitoring, arranging informal and then formal meetings, deciding on dismissal or another sanction, and overseeing the appeal stage. Click below to view or print the full-size PDF version: Note 1—identifying whether there is a performance issue If an employee’s output falls short of the required standard, the employer may choose to address it under its performance procedure. For an example procedure, see Precedent: Policy and procedure—performance and capability. A clear distinction should be drawn between misconduct and underperformance. Where conduct is the concern, a disciplinary process is the correct route—see Practice Note: Managing performance—Dealing with poor performance. Before commencing any formal action, review the terms of the employer’s performance procedure and check, for example, whether specific time periods are required between each stage...

This flowchart outlines the steps in a disciplinary process addressing suspected employee misconduct: from fact-finding into the allegation(s), through holding a disciplinary meeting and deciding any sanction, to administering an appeal. Click below to open or print the full-size PDF version: Note 1—dealing with an allegation of misconduct When assessing whether the matter amounts to possible misconduct, it may also be necessary to examine the employee’s contract, the employer’s staff handbook and any other applicable policies or procedures beyond the disciplinary/dismissal procedure, for example an equality/equal opportunities policy or an expenses policy. Remember that a situation that initially appears to be misconduct could instead be a performance or capability issue. See Practice Note: Managing conduct—Dealing with conduct issues. Where a conduct issue arises, the first step is to investigate promptly and without undue delay to establish the facts of the case. Note 2—using mediation In appropriate circumstances, mediation may be considered as part of, or in parallel with, the disciplinary process. If both parties agree to...

This checklist highlights the key points to weigh up when preparing an ET1 claim or an ET3 reply. It addresses jurisdictional matters, such as the claimant’s right to pursue unfair dismissal and whether the claim was filed within time. It considers the reason for dismissal and ill-health capability, including sporadic absences, long-term absence and diminished performance. It also assesses the substantive and procedural fairness of the dismissal. Finally, it identifies remedy issues to think about, eg reinstatement, re-engagement and compensation. Both parties Was the Claimant an employee? See Practice Notes: Entitlement to claim unfair dismissal-Eligibility and Employee status Does the Claimant have the necessary qualifying service? See Practice Note: Qualifying period for unfair dismissal Has the Claimant met the early conciliation requirement, or does an exemption apply? See Practice Note: The early conciliation requirement Was the claim submitted within three months, or within the extended period where early conciliation applies? See Practice Notes: Unfair dismissal time limit and The early conciliation requirement-Extension to...

In this issue: Horizon scanning Recruitment Public sector Pay Tax Protected characteristics Equality of terms (equal pay) Whistleblowing Employee duties and restrictions on competition Unfair dismissal Employment Tribunals Dates for your diary Trackers New Q&As Employment resources on Lexis+® LexTalk®Employment: a Lexis®Nexis community Daily and weekly news alerts Horizon scanning Government U-turns on day-one unfair dismissal rights and announces compensation cap ‘will be lifted’ On 27 November 2025, the Department for Business and Trade (DBT) confirmed that, following a round of ‘constructive conversations’ with trade unions and business representatives, the discussions settled on a ‘workable package’: shortening the unfair dismissal qualifying period from two years to six months, while preserving existing day-one protection against discrimination and for automatically unfair reasons for dismissal. To reinforce these safeguards, the government further pledged that any alteration to the unfair dismissal qualifying period will only be possible through primary legislation,...

This Practice Note examines the aims of conduct management in the workplace, together with codes of conduct and disciplinary procedures. It also looks at investigating a problem and deciding whether to start a disciplinary process, the likely causes of misconduct, and practical approaches to dealing with misconduct. All employers strive to get the most from their employees. Guiding and monitoring workplace behaviour is a vital part of that. When standards slip, employers need to manage conduct so staff are given a genuine opportunity to improve. Where improvement falls short, employers must know how to act fairly, which may, where appropriate, extend to dismissal. The aims of conduct management The principal purpose of conduct management is to ensure employees act reasonably within the workplace. It sets clear expectations so individuals have the chance to improve before further steps are considered...

This Practice Note explores the steps an employer should take to handle the fair dismissal of an employee on performance grounds and to reduce the risk of an unfair dismissal finding. Employees with adequate length of service and who otherwise satisfy the qualifying conditions have statutory protection from unfair dismissal (see Practice Notes: Entitlement to claim unfair dismissal and Qualifying period for unfair dismissal). To prevent a determination of unfair dismissal, employers must have a fair reason to dismiss. Capability or performance is one of the potentially fair reasons for termination (see Practice Note: Reason for dismissal—general—Potentially fair reasons). Nevertheless, to dismiss an employee fairly for performance, the employer must also follow a fair process that provides the employee with sufficient opportunity to improve. Ultimately, it must be demonstrated that dismissal is a fair sanction to apply. Performance management For information on the purposes of performance management, the effect of bonuses and incentive schemes, how to monitor performance, performance procedures, and tackling poor performance, see Practice Note: Managing...

Every employer aims to maximise the contribution of their workforce. Keeping sight of how people are performing is a vital part of that. When expectations fall short, employers must be able to manage performance, giving staff a fair opportunity to improve. Where adequate progress does not materialise, employers should understand how to act proportionately and lawfully, which could, in the end, involve dismissal. Handling any performance improvement procedure fairly is critical so that, if dismissal follows, the employer can properly resist any unfair dismissal claim (see Practice Notes: Dismissing fairly for poor performance and Reason for dismissal—capability) and any possible discrimination claim (see, for example, Practice Notes: Direct discrimination and Indirect discrimination). At common law, there is an implied warranty that an employee is competent to carry out the role for which they were hired. For more detail, see Practice Note: Types of contractual term in employment—Employee’s implied obligations, under the heading ‘Competence’. Acas guidance on managing performance has been archived and can be accessed via The National Archives website....

Note: this letter is prepared in broad terms without reference to any particular scenario. You should adapt the letter where you are advising on an identified employee and the specific facts. Where the employer operates its own performance and capability procedure (or a disciplinary process addressing inadequate performance), you must refer back to that policy throughout the letter, linking each stage of the process and any time limits set within it. You may discover that the employer’s procedure requires additional warnings or imposes other steps. This letter proceeds on the basis that performance review periods will be shorter than the duration of any warnings issued. Ensure cross-references appear at each stage and that all stated deadlines are meticulously observed throughout the procedure. [ name and address of client ] Dear [ name ] Performance and capability procedure I write to outline my advice on running a performance and capability process for an employee whose performance falls below the required standard. The principal legal exposure, if the...

Insert in para 8.2 of claim form ET1: The Claimant served with the Respondent as a [ insert job title, eg ‘paralegal and then as a trainee solicitor’ ] commencing on [ insert start date of employment, eg 6 September 2021 ] and continuing until [ his OR her OR their dismissal on [ insert date, eg 31 March 2024 ] ]. The Respondent is [ insert brief description of the nature of the Respondent, eg ‘an international law firm’ ]... [ The Claimant alleges that the Respondent subjected [ her OR him OR them ] to [ a course of ] discrimination, harassment and victimisation, which encompassed [ his OR her OR their ] discriminatory and unfair dismissal. ]... Disability The Claimant lives with [ insert details, eg ‘clinical depression and severe dyslexia’ ] and was, throughout the relevant period, a disabled person [ owing to each of these impairments ] for the purposes of section 6(1) of the...

[ Insert in para 6.1 of response form ET3: ] It is [ accepted OR not accepted OR denied ] that the Claimant was engaged by the Respondent as a [ insert job title, eg ‘Senior Accountant' ] from [ insert start date of employment ] up to [ his OR her OR their ] dismissal on [ insert end date of employment ]. It is further [ accepted OR denied ] that the Respondent is [ insert brief description of the nature of the Respondent, eg an internet service provider ]. The Respondent rejects any assertion that the Claimant was unfairly [ and/or wrongfully ] dismissed [ and/or that there was a failure to comply with the statutory right to be accompanied by a trade union representative or colleague at a disciplinary hearing ], whether as alleged or at all. [ The contract of employment ] [ It is [ accepted OR not accepted OR denied ] that the...

You may wish to consider separately: the implied term the fairness of a dismissal which prejudices Permanent Health Insurance (PHI) rights, under the statutory law on unfair dismissal Where PHI benefits depend on employment continuing, the High Court has implied a term preventing dismissal during incapacity, save for summary dismissal (gross misconduct) or another compelling ground (eg redundancy). In Briscoe v Lubrizol, the Court of Appeal signalled a broader carve-out, permitting dismissal for ‘reasonable and proper cause’. Even so, such a term is not always to be implied. In Lloyd v BCQ (EAT) no implication was made where: a later written contract omitted any reference to the PHI scheme and contained an entire agreement clause there was, overall, no contractual entitlement to scheme benefits the contract expressly permitted dismissal for prolonged illness For more detail, including reconciling Briscoe and Lloyd, see Practice Notes: Dealing with long-term or chronic sickness—Consider any Permanent Health Insurance (PHI)...

Section 2 of the Mental Health Act 1983 (MeHA 1983) Under MeHA 1983, s 2 permits a person to be taken into hospital and kept there once an application for admission for assessment has been properly and lawfully made, the aim being to evaluate their mental health. MeHA 1983, s 3 in turn authorises admission to hospital and continued detention where an application for admission for treatment has been successfully made. The Mental Capacity Act 2005 (MCA 2005) sets out a number of governing principles which are to be appropriately applied for the purposes of that Act, in connection with its application...