Dealing with persistent poor performance because of ill-health. By Debbie Taggio

When dealing with poor performance or incapability issues because of ill health, an employer needs to exercise great care if they are to avoid an employment tribunal claim.

A written capability policy is the gold standard, however, not all employers have one in place. In all cases, the capability process must be fair and transparent, and for those employers who do not have a written policy and procedure, it is advisable to follow the ACAS Code of Practice for Discipline and Grievance and adapt it for capability.

Employment tribunals recognise the code as the best practice way of handling a disciplinary matter and can be used alongside the ACAS guide ‘discipline and grievances at work’.

It should be noted that the actions at the first stage of a capability process differ from those of the disciplinary process. In such cases, the employee should initially receive a time-limited improvement notice. There must be no bias or discrimination within the process, and written records and documentation should be kept throughout. This provides a record of any investigations, discussions, the outcomes and expected change in performance or arrangements around illness and/or sickness. The outcome may be dismissal, which the employee can appeal and potentially bring an employment tribunal claim, in which case all records will be needed.

Dealing with continuing ill-health and capability

When an employee has been off sick for a prolonged period of time and it is believed unlikely they will be well enough to return to the workplace within a reasonable timeframe, an employer can fairly dismiss.

The nature of the job and the difficulties the employer has encountered in covering the absence should be taken into account when deciding what may amount to a reasonable timeframe. Even where the role has been sufficiently and adequately covered and where costs to do so have been negligible, there is no obligation to keep the role open indefinitely.

Before an employee can be dismissed fairly on grounds of capability, an employer must:

• Investigate the circumstances to find out how long it is likely to be until the employee returns. The investigation should include speaking with the employee and investigating the medical issues.
• Invite the employee to a meeting to discuss all the information gathered during the investigation and allow them to put forward their case and if they believe their role should remain open for a longer period of time.

An employee can be asked to authorise permission for a medical opinion to be obtained in relation to their condition, although the employee does not have to agree. Any approach is covered by the General Data Protection Regulations (GDPR) and the Access to Medical Reports Act. An employer can also ask the employee to have a medical examination by a doctor of the company’s own choice (be sure to check employment contracts for clauses detailing this).

When writing to a doctor, the employer should ask them whether they consider the employee to be disabled and what, if any, reasonable adjustments can be made that would allow the employee to return to work. Where it is deemed the employee is disabled, the employer should discuss a return to work with the employee together with any proposed reasonable adjustments.

If the employee refuses to give their consent to a medical assessment, the employer may be forced to decide as to next steps based on the information it holds. Once the documentation and further information has been obtained, the employer should invite the employee to a capability meeting and advise them that:

• The decision could result in their dismissal
• The decision is based on the medical evidence available
• They have a right to be accompanied

Where the conclusion is that the employee is unlikely to be well enough to return to their role within a reasonable timeframe, the employer should consider:

• Any other vacancies that are available within the organisation that may better suit the employee, either immediately available or in the future
• Any other reasonable adjustments that could be put in place to allow the employee to return to work (for disabled employees)

Where short-term illness is a frequent occurrence

The capability procedure may be used, however employees should be informed:

• Their level of sickness is considered unacceptable in the long-term
• Their sickness record exceeds acceptable levels
• Any improvement time-limits
• Where improvement has not been forthcoming, the possibility of dismissal
• Of a capability meeting to discuss their absence.

NOTE: This content is provided as general background information and should not be taken as legal advice or financial advice for your specific situation. Make sure you get individual advice on your case from an independent source before taking any action.