Capability or competence
The absence of competence, qualification or capability are potentially fair grounds for dismissal. The WRC does not second guess the employer in determining whether the employee lacks the requisite competence, qualification or capability. If a reasonable employer would reach this conclusion, and the employer honestly believes it, this will generally suffice for a fair dismissal, subject to fair procedures. However, if the circumstance discloses no reasonable grounds upon which an employer could reach such a conclusion, the dismissal is potentially unfair.
Capability refers to the ability or capacity to do the job for which the employee is employed. Capacity to do the job covers the full range of circumstances which may cause incapacity, including illness and disability. Ill-health causing incapacity to do the job may be a potentially fair ground for dismissal.
Qualifications cover formal qualifications required for the job, as well as legal requirements such as work permits. Qualifications may include an obligation to undertake continuous training and development, where this is required for the continued performance of the particular job.
An employer may be obliged to provide lighter duties, where this is reasonable in the circumstances. This may be the possible in a larger organisation. Generally, there is no obligation to create a new position suitable to the employee’s capability, where this is not reasonable and practicable.
Capability includes, principally, the employer’s ability to do the job. Incapacity may not necessarily be the employee’s fault. It may result from an accident or illness. The fact that an employee is ill, even due to a workplace injury does not prevent a fair dismissal. However, the decision must be justifiable, and the employee must be accorded procedural fairness. The employee should be given a warning of the possibility of dismissal on the basis of capacity and an opportunity to be heard.
An employee should not be dismissed merely on account of a long absence or poor attendance record. There must be fair procedures to validate the fact of the incapacity, fitness for work, etc. The prospect of a recovery and business needs must be considered in the context of the entire circumstances. In a larger business, there may be more capacity to absorb an employee’s absence for a longer period.
Competence refers to the ability to do work of a satisfactory quality. Where an employee is not performing to the required standard, warnings and opportunities to improve must usually be given. In exceptional circumstances, a single act may justify dismissal.
If the employer honestly believes that the employee is not competent and suitable, the grounds of belief are reasonable, and the employee has been afforded procedural fairness, then there is not generally be an unfair dismissal. However, a dismissal must not constitute disguised unlawful disability based discrimination.
A dismissal may be fair if the employee does not have the necessary qualifications for the job. For example, a valid licence, qualification or certificate may be legally or practically required to perform the job. If a qualification for the position is required within a reasonable time due to changes in regulations, then it may be reasonable to dismiss an employee who does not qualify within a reasonable timescale.
Absence and Illness I
High levels of unauthorised absence may lead to disciplinary steps and ultimately to dismissal. Absence due to illness is commonly required to be medically certified after a period, commonly three days’ absence. Any abuse of sick leave is potentially the subject of disciplinary procedures for misconduct. See generally the sections on misconduct.
In some cases, issues may arise as to whether it is possible to place the employee in lighter employment consistent with his illness or conditions. There is no general requirement to provide alternative employment. However, where there is a suitable alternative reasonably available, it may be an unfair dismissal to fail to offer it.
The onus is on the employer to show that the relevant ground of dismissal was the real reason for dismissal, that the reason was substantial and that the employee was given fair notice of the issues and the opportunity to be heard.
Abesence and Illness II
The dismissal is potentially fair if it is necessary. Mere poor attendance by is not usually sufficient. The dismissal may be held to be unfair where the absence did not necessitate dismissal on demonstrably fair grounds.
The question may arise as to whether the employer can be expected to wait any longer and if so, how much longer. This will depend on the nature of the illness, the likely length of continuing absence and the employer’s need to have work done
Fair procedures and warnings are required. The employee must be given sufficient opportunities to alleviate the position, if possible. A dismissal may be potentially fair if it can clearly be shown it is beyond the capacity of the employee concerned to recover or improve.
If there is no dispute as to the existence of the incapacity, then a medical test and report may not be necessary. Otherwise, a reference to medical tests and reports is required.
The matter of dismissal is ultimately one for the employer. Medical advice and opinion may be taken into account, but it should not determine the decision to dismiss. In some cases, reference may be made to the employee’s own doctor or medical adviser. If a reference is made to another doctor or specialist, that latter person must know the requirements of the employee’s job so that his advice can be meaningful.
The medical evidence should be up to date and must be relevant. It must relate clearly to the alleged incapacity. There must be clear authority for the use of the employee’s medical records, where applicable. Where the issue is serious and dismissal is a risk, then a second opinion or a specialist’s report may be required.
The employer may be held to have acted unfairly even if he acts in good faith on the basis of his own medical advisor’s report. The employee should be given the opportunity to rebut the findings through his own doctor, where he does not accept them.
It appears that the fact that the illness or injury was caused by a workplace accident or illness does not preclude a dismissal for incapacity from being potentially fair.
An issue may arise regarding disability discrimination. The employer may be required to make reasonable adjustments to accommodate the employee in some cases.
Intermittent Absences I
There may be a series of frequent uncertified or certified absences, which lead the employer to question to employee’s capacity to undertake the role. An abuse of sick leave is a disciplinary matter to which the requirement relating to misconduct apply.
The UK EAT has indicated the appropriate response of an employer faced with a series of intermittent absences. The approach should be based on sympathy, understanding and compassion. There is no principle that the mere fact that an employee is fit at the time of dismissal makes his dismissal unfair. The employer must look at the whole history and the whole picture.
In order for a dismissal for intermittent absences to be fair, the UK EAT has held that the following must be satisfied:
- there should be a fair review by the employer of the attendance record and the reasons for it;
- there should be appropriate warnings after the employee has been given an opportunity to make representations;
- if there is no adequate improvement in the attendance record then in most cases the employer will be justified in treating persistent absences as a sufficient reason for dismissing the employee.
Intermittent Absences II
Every case must depend upon its own facts. The factors which may prove important include:
- the nature of the illness;
- the likelihood of recurrence or some other illness arising;
- the length of the various absences and the spaces of good health between them;
- the need of the employer to have the work done by the particular employee;
- the impact of the absences on others who work with the employee;
- the fulfilment by the employer of any relevant sickness absence policy;
- the importance of a personal assessment in the ultimate decision; and
- the extent to which the difficulty of the situation and the position of the employer has been explained to the employee so that the employee realises that the point at which his or her dismissal will be contemplated may be approaching.
Long Term Incapacity
An employer is not necessarily unfair in dismissing an employee while on prolonged sick leave. If the employee clearly lacks the capacity to do the job, then subject to following rigorous fair procedures, it may be possible to justify dismissal.
In some cases, the incapacity to work may frustrate the employment contract. What is sufficient to constitute frustration, will depend on circumstances. The common-law principle of frustration terminates the contract automatically so that there is no dismissal.
An employer may be able to show that the employment contract has been frustrated, if the employee’s incapacity is of such a nature or extent, that the future performance of the contract is impossible or unlikely. The Irish tribunals and courts have been reluctant to readily reach this conclusion.
Difficult questions may arise where there is a sickness or long-term illness scheme in the employment, where entitlement is based on continued employment. In some cases, the tribunals have decided that it would be unreasonable to dismiss the employee such as to deny the availability of the scheme. In other cases, the clear inability to do the job has been held to be sufficient basis for a fair dismissal.
Competence refers to the employee’s ability to do the job. The requisite performance standard should be clearly established and communicated to the employee from the outset. Where an appointment is probationary, the employee should be given an opportunity to show his capacity and establish himself in the job.
In the event of a dismissal, the WRC adjudication officer considers whether the employer had an honest belief in the employee’s lack of competence. If this is so and there were reasonable grounds for dismissal, then it is likely to be fair from a substantive perspective
A performance-related dismissal must be procedurally and substantively fair. Targets and performance requirements should be themselves reasonable and clearly communicated. The consequences of non-compliance must be specified. The employee should be assisted in meeting the requirements This may require training and monitoring.
Procedural Fairness I
Where there are alleged failures of performance, the employee must be afforded fair procedures in much the same way as in a case based on misconduct. Procedural fairness is required. A dismissal for lack of competence is likely to be unfair unless the employee has been given sufficient opportunities to remedy the alleged shortcomings in performance standards.
The procedure should provide for the escalation of competence and performance issues, through a series of communications, warnings and written warnings in advance of any disciplinary or other formal procedures. The employee should be given the opportunity to make representations in relation to the matter concerned. He should be given the opportunity to remedy the alleged shortcomings in performance.
Performance issues in employment should be monitored. Coaching and training may be appropriate. Where a performance problem emerges, the employer must be able to demonstrate how it came to light. The employee must undertake a thorough investigation of the reasons for the shortfall in performance before disciplinary or remedial steps are taken. It may be that there is a reasonable explanation for the performance failure.
A so-called performance improvement plan may seek to assist in the improvement of performance, while also providing a record for the employer of the remedial steps and measures taken. Steps should be taken to assist the employee in improving performance. Counselling and assistance should be given.
Procedural Fairness II
Where there is a continuing failure to meet the required level of performance, there should be a clear communication or warning that the employee is falling short of the required standards. The steps require to remediate the position should be stated, and clearly communicated.
The employer must show that it monitored the employee’s response to the communication / warning. It is not necessarily enough to leave the employee until a further failure of performance occurs. If there has been no improvement, it must be shown that warning, counselling and assistance were given as the circumstances reasonably require.
Ultimately a clear and unequivocal warning must be given. It must clearly communicate what the problem is, what is required and the consequences of failing to meet the standard. The standards should be required on an ongoing basis rather than on a one-off basis.
The employers must be able to show that all the requisite steps have been followed. Fair procedures should be followed. This will require a greater opportunity for response and explanation by the employee as the process escalates and the risk of dismissal increases.
References and Sources
Employment Law Meenan 2014 Ch. 20
Employment Law Supplement Meenan 2016
Employment Law Regan & Murphy 2009 Ch.14 ( 2nd Ed 2017)
Employment Law in Ireland Cox & Ryan 2009 Ch.21
Dismissal Law in Ireland Redmond 2007
Other Irish Books
Employment Law Forde & Byrne 2009
Principles of Irish Employment Law Daly & Doherty 2010
Employment Law Contracts (Book & CD-ROM) Beauchamps, Solicitors 2011
Unfair Dismissals Act 1977 (10/1977)
Worker Protection (Regular Part-Time Employees) Act 1991 (5/1991),
Unfair Dismissals (Amendment) Act 1993 (22/1993)
Protection of Employees (Part-Time Work) Act 2001 (45/2001
Civil Service Regulation (Amendment) Act 2005 (18/2005) (Part 6)
Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007 (27/2007)
Industrial Relations (Amendment) Act 2015 (27/2015), s. 39
Periodicals and Reports
Employment Law Yearbook (annual) Arthur Cox
Employment Law Reports
Irish Employment Law Journal
Employment Law Review
Dismissal & Redundancy Consolidated Legislation Barrett, G 2007
Irish Employment legislation (Looseleaf) Kerr 1999-
Employment Rights Legislation (IEL offprint) Kerr 2006
Dismissal & Redundancy Consolidated Legislation Barrett, G 2007
Principles of Irish Employment Law Daly & Doherty 2010
Termination & Redundancy, What is the law? Hayes, Barry & O’Mara 2005
Termination of Employment Statutes (IEL) Kerr 2016
Termination of Employment: Practical Guide for Employers Purdy 2011
Employment Law Nutshell Donovan, D 2016
Employees: Know Your Rights Eardly 2008
Essentials of Irish Labour Law Faulkner 2013
Workplace Relations Commission http://www.lrc.ie/en/
Irish Human Rights and Equality Commission https://www.ihrec.ie/
Health and Safety Authority http://www.hsa.ie/eng/
Textbook on Employment Law, Honeyball, et al. 13th Ed. 2014
Labour Law, Deakin and Morris 5th Ed. 2012
Employment Law, Smith and Wood 13th Ed 2017
Selwyn’s law of Employment Emir A 19 Ed. 2016
Employment law : the essentials. Lewis D Sargeant M and Schwab M 11 Ed.2011
Labour Law Collins H, Ewing K D and McColgan 2012
Industrial relations law reports. (IRLR): Law Section,
Employment law Benny R Jefferson M and Sargent 5th Ed. 2012
Pitt’s Employment Law 10th Ed. Gwyneth Pitt 2016
CLP Legal Practice Guides: Employment Law 2016 Gillian Phillips, Karen Scott
Cases and Materials on Employment Law 10th Ed. Richard Painter, Ann E. M. Holmes 2015
Blackstone’s Statutes on Employment Law 2015 – 2016 Richard Kidner
UK Practitioner Services
Tolley’s Employment Handbook 2017 Mrs Justice Slade 2017
Butterworths Employment Law Handbook 2017 Peter Wallington 2017
Blackstone’s Employment Law Practice 2017 Edited by Gavin Mansfield, John Bowers, John Macmillan 2017
UK Periodicals and Reports
The Employment Law Review 8th Ed. Erika C. Collins 2017
Industrial Relations Law Reports
Employment Law in Context: Text and Materials 2nd Ed. David Cabrelli 2016