Hello and thank you for your question, which I will be happy to assist you with. Please let me know if you believe there is anything they can do to keep you in the job?

do you agree?

ok let me get my answer ready. I have a quick meeting first but you will hear back from me within the hour

Thanks for your patience. As far as the law stands, capability is one of several potentially fair reasons for dismissing an employee under the Employment Rights Act 1996. The definition of ‘capability’ encompasses competence (skill and aptitude), health (any mental/physical quality) and qualifications.

Whether a capability dismissal is fair will depend on the reasonableness of the employer's decision in the particular circumstances and the procedure followed. In such cases, a tribunal will want to be satisfied that the employer had reasonable grounds to believe that the employee was incapable of performing their job but. Another important consideration will be the extent to which the employer has provided necessary support and training.

It is a basic principle of fairness that a decision to dismiss or take other disciplinary action should not be taken without a formal hearing or meeting. Generally, case law has established that a dismissal on grounds of capability will not be fair unless the following key elements are present:

• Did the employer have a reasonable belief in the employee’s incompetence – it is not necessary that the employee was actually incapable, as long as the employer reasonably believes that to be the case
• A proper investigation into the problem has taken place.
• The employee has been made aware of the problem and been given an opportunity to improve within a realistic timescale
• The employee has been provided with appropriate support and possibly training.
• The employee's progress is reviewed during the review period.
• The employee is offered a right of appeal against the decision to dismiss.

Dismissal must always be the last resort as dismissals for capability are always difficult to justify to tribunals, who, not unreasonably, may have sympathy with employees who have been ill, especially if the reason for their absences is a condition that amounts to a disability under law, such as cancer.

Before dismissal on grounds of ill health can be considered the employer should check if early retirement is possible. There has been case law that has confirmed if the employer has an early retirement benefits scheme in place they should consider that first before dismissal. However, if you do not meet the criteria for early retirement the employer would not be obliged to go down that route - so it depends what the requirements are.

In terms of resignation, if you are being dismissed then resignation would be pointless. If you are dismissed you can consider unfair dismissal but that won't necessarily be a successful claim if the employer can show there were no adjustments possible, there was nothing else you could have done, you did not meet the requirements of the early retirement scheme and they followed a fair procedure.