Dismissal Due to Lack of Capability

Dismissal may be potentially fair on the grounds of lack of qualifications or, more commonly, capability. The reason for performance issues and any surrounding circumstances must be taken into account:

Incompetence: An incompetent employee may be reasonably dismissed where you have examined: the reasons for their poor performance; given them a reasonable chance to improve; considered whether there is potential for improvement; and assessed whether there is any suitable alternative job you can offer. Except in cases of gross incompetence, it would be unlikely that an employment tribunal would uphold a dismissal as fair for a single error of judgement.

Laziness: For the lazy employee, where improvement may be possible, warnings should be given in line with your disciplinary procedure, clearly setting out what is expected.

Length of Service: Deciding on a reasonable timescale for the employee to improve their performance will depend on the employee’s past service, the extent of the underperformance and the impact of the underperformance on your business.

Gross Incompetence: Warnings would not normally be necessary for gross incompetence, where a warning would make no difference (e.g., where there is no realistic hope of improvement) or where serious consequences follow the incompetence.

If you reasonably and genuinely consider that the employee was not capable and provided you act reasonably, it is likely that you will be considered to have dismissed the employee fairly. However, in almost all cases, there should be a proper appraisal and warnings procedure with agreed time scales and targets for improvement before a final decision is taken. The views of superiors and peers, other previous complaints, and specific instances as to the employee's failings will all be taken into account in assessing the reasonableness of your decision and should therefore be documented at the time they arise.