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Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
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Hello, I have attended a capability hearing today (without

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I have attended a capability hearing today (without union representation) as the prison service wishes to dismiss me for medical inefficiency. I
had glandular fever for several months and residual effects for the last 18. However I have been back at work full time for over a year. But have had a lot of sickness due to low immunity.

I have put in 2 grivences recently about the way my sicknesses have been handled (one fully upheld the other partially upheld)
The meeting was taped and I was basically told by my governor that should not have put the grivences in or should not claim procedures have not been followed; as I used to line manage other so should know the procedure, and its my responsibility to go and find the information once I was aware I was going to capability. (Even though I never put anyone on capability or managed anyone on a phased return)
My conditions is classed as a SUMC as it lasted 12months or more.

My argument is that my adjustment s where not recorded or managed in line with procedure. Which has been upheld in my grievances. This I feel has prolonged my recovery and aggravated my condition.

My last 2 sickness where for work place stress which have nothing to do with my condition but the way the department is currently being run and the fact there is sexual harrasment investigation going on, and my being placed on capability (which again I maintain procedure of notification and consequence where not explained properly) they has also been elements of bullying which I have logged and put a grivences in about last year.

It is likely I will be dismissed.
My question is will I have a good case if I take them to tribunal for unfair dismissal?
Do I have to follow the appeals procedure before I take them to tribunal? I feel presently I don't want the job due to the way I have been treated.
If they give me pay in lue of notice will this mean I cannot take them to tribunal?

Many thanks for your advice- i know this is a long and complex situation

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?

I worked there 8 years with the prison service 3.5 years at that establishment. I have had 11 sicknesses in 20 months, 8 conected to the orginal glandular fever 2 to work place stress

Ben Jones :

First of all I must advise that we cannot give you prospects of success if you were to take them to tribunal. We simply do not have enough information to do so and only a solicitor who has met with you and conducted a full case analysis can advise if you will have a good case. What I can tell you is how the law works in cases of capability dismissals, and what is expected of the employer.


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.)


In terms of taking this further and to answer your specific questions, it is recommended that you follow the appeals procedure because if you do not and the employer believes you did so without reasonable justification, any award you get may be reduced by the tribunal. If you get paid in lieu of notice it would change nothing and certainly does not mean you can't take them to tribunal - that would still be possible.

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