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Employment tribunals - legal tests for unfair dismissal claims - capability

This advice applies to England

Your employer may have dismissed you because of the way you've performed at work. However, before they do this they must follow a certain process and be able to show that they've tried to help you improve your work.

This page tells you more about the legal tests tribunal judges will use to decide whether your employer's decision to dismiss you because of poor performance can be justified.

What the tribunal will look for

If you've been dismissed for poor performance, the tribunal will be looking to see that you were given time and the correct support to improve before you were dismissed. The tribunal will also look at whether your employer:

  • genuinely believed you were incapable of doing the job and if there were reasonable grounds for them to believe this
  • carried out a proper investigation of your performance
  • told you about your under-performance and gave you clear warnings
  • gave you a reasonable chance to improve
  • offered you suitable alternative work, if this was possible.

The tribunal will also consider whether the decision to dismiss you was within the range of responses of a reasonable employer.

There are also general legal tests for unfair dismissal claims that the tribunal will apply to the claim. These include looking at whether your employer followed the Acas code for disciplinary and dismissal procedures.

Did your employer genuinely believe you were incapable of doing the job?

The tribunal will want to know exactly why you were dismissed. The reasons for this may be in your dismissal letter.

Your employer doesn't have to prove that you were incapable of doing the job. They just have to show that they genuinely believed you couldn't do it and there were grounds for believing this. This can be difficult to challenge.

If you think your employer used your performance as an excuse to dismiss you for another reason, it will help your case if you can provide evidence supporting why you think this. Evidence could be: appraisals and work records, or witness statements from colleagues or managers who can vouch for your performance record.

Were there reasonable grounds for believing that you were under-performing?

Your employer will have to prove there were reasonable grounds for believing you were incapable of doing the job. Evidence they may use includes:

  • examples of your work
  • statements from line managers
  • performance targets that you've missed.

If you don't accept the criticism

If you don't accept under-performance is the real reason why you were dismissed, you will have to look for inaccuracies and inconsistencies in your employer's evidence to show the tribunal why you think you were unfairly dismissed.

Performance targets

If you think you were set unreasonable performance targets, you will have to prove that no reasonable employer would have set that target. An employer is entitled to set tough performance targets, particularly if others meet them. You will have to show that the target was unachievable or that you were the only person asked to meet them and that colleagues were set easier targets.

Did your employer carry out a reasonable investigation of your performance?

The tribunal will look at whether your employer looked at why you were performing badly and whether there were any reasons that contributed to it. A tribunal will ask:

  • what your employer did to investigate your performance, who they spoke to and what evidence they got
  • whether they could have done anything else to find out why you were under-performing
  • were there any reasons why you were under-performing, such as ill health, family problems or stress.

If there were other reasons why you were under-performing, your employer should have acknowledged this and the tribunal will want to see what support they gave you. In some cases, your employer should have made adjustments to your working environment under discrimination law. If they didn't  do this, you may be able to make a claim for discrimination too.

Were you told about your under-performance?

A tribunal will look at whether you were warned about your under-performance and the consequences of failing to improve. A tribunal will want to know whether:

  • you'd been told before that your performance needed to improve and what action had been taken against you
  • you were warned that you could be dismissed if your performance didn't improve
  • your employer offered to support you with training or mentoring.

If you were offered support

A tribunal will want to know:

  • when it took place
  • whether it was adequate
  • whether it helped.

if you weren't offered support

A tribunal will want to know:

  • what kind of support you needed
  • how it would have helped
  • how easy would it have been for your employer to do this
  • why you think they didn't offer support.

It will help your case if you can prove extra support would have helped you improve but that your employer didn't offer it.

Were you given a reasonable chance to improve?

The tribunal will look the length of time between you first being told there was a problem and your dismissal. If you were not given enough time to improve your work, this will help your case.

How long you should have been given to improve and how many warnings you should have received before you were dismissed will depend on:

  • how long you were employed
  • whether there were any recent changes in the workplace or in your job, which the tribunal would expect your employer to provide support for
  • whether you co-operated with the process
  • whether there were other reasons for your under-performance, such as family problems or ill health.
  • whether you made any improvement at all.

Were you offered suitable alternative employment?

A tribunal will look at whether your employer offered you suitable alternative employment and whether more could have been done to find you other work.

If you really don't have the skills to do the job, it may not have been reasonable to offer you alternative work. However, it will depend on the circumstances. If you had struggled with a change of duties, for example, it may have been reasonable to consider moving you to another job rather than dismissing you.

Was it reasonable to dismiss you?

The tribunal will look at whether your employer:

  • genuinely found you incapable of doing your job after they did a proper investigation
  • used reliable evidence to support their claim
  • tried steps to help you improve, which failed
  • gave you enough time to improve.

If your employer has done all of these things, a tribunal would usually consider it reasonable for them to dismiss you because you were incapable of doing your job.

However, your employer must follow the correct procedure when they discipline and dismiss you. If they didn't do this, you may be able to make a claim for unfair dismissal based on this. But if a tribunal thinks that you were incapable of doing the job, any compensation you receive would be likely to be reduced. This is known as the Polkey reduction.

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