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Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
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I have been suffering with depression for around 6months. When

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I have been suffering with depression for around 6months. When I was first diagnosed with this I was finding it hard to do the most simplest of tasks at work. At first my employer was good about it and gave me some leave. I now feel like I have got over the worst of it and started to do well at work again but still not 100%. However my employer has lost patients with me as I am "not preforming at the right level" and wants me to hand in my notice or they will start proceedings to sack me.

Do I have a case for unfair dismissal?

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How long have you worked there for?


Hi ben, thank you5 and a half years

Ben Jones :

Capability is one of several potentially fair reasons for dismissing an employee under the Employment Rights Act 1996. The definition of ‘capability’ includes 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 that was followed. Basically, the employer needs to show they had reasonable grounds to believe that the employee was incapable of performing their job.


Case law has established that a dismissal on grounds of capability can be unfair if the following key elements have not been satisfied:

  • The employer needs to hold reasonable belief in the employee’s incompetence;

  • They have conducted a proper investigation into the capability issues;

  • 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/or 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 viewed as a last resort by the employer. This is especially true if the reason their capability is affected is due to a condition that amounts to a disability under law.


Whether a condition is a disability will depend on a number of factors. Disability can have a broad meaning and there is no single list of conditions that amount to a disability under law. Instead, to establish whether a person is disabled for legal purposes, they need to establish whether they meet the legal definition of ‘disability’.


The Equality Act 2010 (“EA”) defines a disability as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.


I will break this definition down:

  • Physical or mental impairment – this can include nearly any medical condition, including progressive conditions and mental conditions such as depression;

  • Substantial effect – the effect must be more than minor or trivial;

  • Long-term - the effect of the impairment must either have lasted or be likely to last for at least 12 months;

  • Normal day-to-day activities – these are not defined but would include anything considered ‘normal’ in a person's normal daily routine (e.g. eating, washing, driving, walking, shopping, etc.)


If it appears that the employer has taken a particularly heavy-handed approach and failed to satisfy at least some of the requirements that make a capability dismissal fair, the option exists of appealing to them first before submitting a claim for unfair dismissal, subject to having at least 2 years' continuous service (and possible disability discrimination if the condition in question amounts to a disability) in an employment tribunal.


Similarly, you cannot be forced to resign and you can certainly refuse to do so, leaving your employer to deal with this and following the dismissal route if they want to, challenging it as above if it happens.

Ben Jones :

Sorry to say that you just managed to catch me when I was going off so if you have any further questions please post them here and I will deal with them as soon as I return - you will get an email when I have responded, thank you


Ok. So as they gave me initial support at the start and 6 months to get over my condition and improve does that mean it would br fair for them to dismiss me?


Many thanks for your time, I look forward to hearing from you

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