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Among the potentially fair reasons for dismissing an employee is that the reason “relates to the capability or qualifications of the employee for performing work of the kind which he/she was do....” The relevant legislation goes on to define capability as “capability assessed by reference to skill, aptitude, health or any other physical or mental quality”. The term “qualifications” is defined as “any degree, diploma or other academic, technical or professional qualification relevant to the position which (the employee) held”. There are therefore two clearly distinct branches of capability –related dismissal.

Single acts of incompetence or negligence will not normally amount to incapability, particularly if the mistake or error was not calamitous. Small but persistent errors may add up over time to capability, but to establish this, an employer will need to have kept clear records of the problems.

Physical and health-related incapacity may be easier to establish. However, tribunals expect employers to consider finding the employee alternative work before being able to dismiss them fairly. The need to make adjustments for such employees is all the more important if the particular ill-health constitutes a disability, as the Equality Act 2010 (which replaced the Disability Discrimination Act 1995 with some notable changes) makes it unlawful to discriminate against disabled people and imposes an obligation on employers to take reasonable steps to make certain adjustments to assist disabled workers.

Qualifications dismissals usually arise when a person is employed on the understanding that he/she has or will acquire a particular qualification and then fails to do so, such as a particular professional or vocational qualification. Employers may change their rules regarding particular qualifications with time, but in doing so must act reasonably towards those current staff that do not meet the new requirement.

The loss of a qualification most often arises in relation to loss of a driving licence. The important factor for employers to consider is whether the holding of a driving licence is truly necessary for the employee for the employee to do the job in question. So, if public transport can provide a suitable alternative, or the employee can find alternative work for the period of the ban, a dismissal may not be regarded as fair.


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