dismiss on capability or early retirement through ill health

[nantotwo]

Has anyone got first hand knowledge of this? I have worked for my employer (big big company!) for over 30 years full time since leaving school, I am now in my late 40's. I was signed off sick in 2003 and they advised me I was eligible for the benefit scheme which would give me half pay for 5 years or until I was fit to return to work dependent on me consenting to medical reports from my GP at their request and providing sick notes (which I have done) and if after 5 years I was still unfit for work I would be considered for early retirement on ill health grounds. No verbal contact was ever made to me again by them after early 2004 (other than written requests for me to sign medical consent forms which came from the Health Insurance provider anyway) until the beginning of this year. (I did get one letter from the new manager in 2007 introducing himself and he asked me to phone him which I never did and that was that) Early 2008 Personnel asked how I was and if I thought I could return to work, would I like part time etc I couldnt...four years tool late I thought! Still under doctor, hospital etc and now my benefit is coming to an end and they are to make a decision on me as I cant return as to whether to dismiss me on capability or retire me on ill health. Medical reports (both from their Doctor and mine) have been done and I am awaiting employers verdict. I know my Doctor has advised she cannot see me being able to work again in any capacity for them or any other employer. It wasnt until this year the dismissal on capability thing was ever mentioned to me. Our pension can be drawn at 50 and I have over 31 years pensionable service and just short of the age I could draw it. I cant believe they can do this to me. needless to say I am at my wits end. Been in touch with the union, not much help only to panic me further saying they probably would dismiss me on capability (and that means no pension!! - if they dismiss me does my pension gets taken off me completely?) The union never even asked what service I had done, no questions at all etc but said even taking that into account they would probably still just dismiss me, no recompense whatsoever. They also said there is no appeal I can make if they do this, surely that cant be right, but I can put in a letter of grievance...

I am looking at the negative side, they may (fingers crossed) decide to retire me early but this is all too horrible to contemplate and making me even more ill.

Can anyone advise me please, I am desperate?

[bazak1]

Capability, as a potential reason for dismissal, is something of a poor relation to redundancy and misconduct. Dismissing an employee on the grounds of capability (or rather incapability) is perceived to be a lengthy and complicated process, which inevitably leads employers to look for more apparently simple options.

In the context of unfair dismissal, "capability" is assessed as an employee's "skill, aptitude, health or any other physical or mental quality" (section 98(3)(a), Employment Rights Act 1996) that affects his or her ability to do the job. This, in practice, provides the potential for fair dismissal in relation either to performance or ill-health (both long-term and intermittent). While there may be an overlap, here we will focus purely on performance-related dismissals.

Larger employers may well have a capability procedure in their employee handbooks. Provided the procedure is non-contractual and not unnecessarily onerous on the employer, this can be useful and provide direction. The key to a speedy process, however, is a continuous appraisal system. If performance figures and/or data on key performance indicators are available, a capability procedure can be implemented quickly and safely.

A capability dismissal is more difficult when there has not been a continuous process of performance appraisals and no objective data is to hand. Where employees cannot be assessed against numerical targets, performance appraisals are invaluable. However, this does not mean the process is lost to those employers with less extensive HR records.

In the first instance, performance issues should be dealt with informally by the employee and their manager. This is part of day-to-day management and will hopefully help guide an employee, ensure they are aware of what is expected of them and prevent problems arising. If there are problems that need to be addressed, targets should be set and a timescale for review agreed. In some cases, an informal verbal warning may be given.

Time scale

If an informal hearing is insufficient or not appropriate, a formal procedure will be necessary. This will involve a capability hearing, where the employee has the right to be accompanied and the usual statutory procedures apply. The purpose of a capability hearing is to:

• set out why and how the company considers the required standards have not been met
  
• provide an opportunity for the employee to explain the poor performance and ask any relevant questions
  
• discuss measures, such as additional training or supervision, which may improve performance
  
• set targets and a timescale for improvement and review.
  

Following the hearing, a first written warning may be given, setting out the areas discussed and the consequences of failing to improve within the review period, or of further unsatisfactory performance.

If performance does not improve satisfactorily, the matter may be progressed to stage two or the review period may be extended. In the case of a second capability hearing, the process and discussion points are similar to those in the first stage, but the emphasis is on why the targets have not been met. A timescale for review will be set and, if appropriate, a final written warning will be given. This would set out the matters already discussed and the consequences of failing to improve within the timescale, or of further unsatisfactory performance. A final written warning will normally remain active for between six and 12 months.

A failure within the final review period or further poor performance after a final warning will lead to a further hearing. This will, again, look at the failings and possible reasons for them. Dependant on the response, it should be established whether there is any reasonable likelihood of the required standard of performance being met within a reasonable time frame. Any practical alternative to dismissal, such as redeployment to another available job of the same grade, should also be considered. If no options exist, dismissal will be appropriate.

Appeal

Dismissal will normally be with full notice or payment in lieu of notice. Appeals should be offered following all stages of the formal capability procedure.

The level of performance expected of an employee will depend on salary, status and seniority. A capability dismissal will generally require a more flagrant failure to meet standards for those employees lower down the employment ladder than those at the top. However, if employers are able to show that they have genuinely attempted to avoid dismissal, tribunals will often take a more sympathetic approach.

[Conniff]

You haven't really helped yourself here as the new boss asked you to give him a ring and you never did.

[nantotwo]

Thanks Bazack1, now understand about capability dismissal. I dont think that the performance related issue you referred to is really relevant in my case ie standards, targets, training, timescale for improvement, written warnings etc. Would this apply to someone in work and under performing. When I was in work we did have an annual appraisal and also monthly targets, the targets I had were always exceeded and in view of this I always received good pay rises and even regional recognition awards. In fact, probably one of the reasons I became ill was I had no work/life balance and gave my all to being the best at my job. What I need to know now please is if they decide to dismiss me on capability is if I have any grounds for an appeal?

Conniff in my depression and other illnesses I have real lows and this stops me handling the easiest of tasks I used to take for granted. Found out my original manager left 2005, another took over and I never heard from that person at all and wouldnt have know if their name wasnt on a letter as receiving a copy the head office had sent to me re my annual medical consent form I had to sign. I believe there is also a different manager there again since last year. So, I think one letter is pretty poor on their part and unless you can appreciate that when someone is ill their focus is elsewhere at the time. Maybe if I had been contacted on a regular basis in the early stages I wouldnt have felt so alienated and a plan could have been drawn up to encourage me. Even HR have said early this year I should have had regular contact and they were sorry that this hadnt happened in my instance. Have been searching the internet and can a reason for them not being 'responsible' employers and contacting me on a regular basis give me a chance of appeal under the DDA 1995? I understand that when someone is ill if there had been too much contact it could be construed as 'bullying' but there surely has to be some degree of contact but I had none basically, no phone call or meeting, for four years. No one suggested or even asked how I could have been helped back into work until 2008.

Can anyone tell me please If they decide to dismiss me on capability will it be by letter or will I have to attend a meeting, will it be with no recompense and what will happen with my pension? (nearly 31 years pensionable service). Someone mentioned that the pension trustees will look at if my illness is likely to be classed as 'long' term and this can mean that the likelihood is that before my pensionable age I am unlikely to get better. Dont understand this point as really if I am long term (which i think my dcoctor has suggested) does that mean they are more likely to retire me early with ill health and with my pension or does that mean it is a better scenario for my employers in dismissing me under capability?

Can anyone see if I can have any grounds for an appeal if it comes to this that may be successful in my case? Just hoping someone may know about the law here and can possibly give me some help or even a glimmer of hope....

[Conniff]

Can't you get in first and get your doctor to sign the forms for medical retirement?

[bazak1]

Visit http://acas.org.uk and/or Website of the UK government : Directgov

These two sites are there to help particularly with questions such as yours.

The CAB might also have someone who's up on these kind of laws too.