Dealing with capability dismissals and fair process
When it comes to employees who are not performing in their job role it can be difficult for employers to manage the process and for this reason many employers put it off.
In this recent case decided by the Employment Appeal Tribunal the process for dealing with a fair capability dismissal was discussed and considered.
In order to fairly dismiss an employee an employer needs to have one of 5 potentially fair reasons for the dismissal.
Once an employer has established the fair reason for dismissal they must show that they have acted fairly and reasonably in reaching the decision to dismiss.
The test is set out in section 98(4) of the Employment Rights Act 1996:
‘(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case.’
In determining the answer, the Employment Tribunal will ask 2 questions:
1) Did the employer follow a fair procedure?
2) Did the employer act reasonably in treating the reason as a sufficient reason for dismissal?
Mrs Elmore was employed as a maths teacher at Darland High School (the ‘School’). She had been qualified as a teacher since 1984 and employed by the School since 2002.
In 2013 an inspection of the School identified that maths performance at the School was lower than other schools and recommendations were made to improve.
There had been concerns identified about Mrs Elmore’s teaching by the head of maths and colleagues who observed her lessons. In January 2014 Mrs Elmore’s class performed particularly poorly in exam results.
The School started a capability procedure with Mrs Elmore to manage her performance. Several meetings took place and support put in place to assist Mrs Elmore in reaching the required standards.
Unfortunately, Mrs Elmore did not reach the standards required by the School and so they took it forward to dismissal hearing. At the dismissal hearing the School argued that Mrs Elmore had never met her target of ‘good’ lesson and although her Union rep argued that she has been rated as ‘adequate’ the School stated that her target for improvement was ‘good’ and this had not been reached.
At the appeal stage a panel was formed to hear Mrs Elmore’s appeal against dismissal but this was not upheld. The appeal panel wrote to
Mrs Elmore and confirmed their decision however the letter did not set out any reasons for their decision.
Mrs Elmore made a claim for unfair dismissal and in doing so argued that the process was unfair as the appeal panel gave no reasons for the decision to dismiss her appeal.
The Tribunal agreed with the School and found that whilst it was a particularly sad case, given her long service as a teacher, it was for the School to set the standard required of employees and ‘not for a tribunal to substitute its own view as to the standard or extent to which the employee reaches the standard’.
The Tribunal were satisfied that the School had set a reasonable and realistic standard of performance and that they had reached a reasonable conclusion that Mrs Elmore had not met the standard required.
In regards to the appeal panel decision the Employment Tribunal were satisfied that whilst no reasons for refusing the appeal had been given, ‘it can be gleaned that by upholding the original decision the appeal panel accepted the decision made and the reasons for the decision made at the earlier stage..…’
Mrs Elmore appealed on a number of grounds, however after preliminary hearings the only ground of appeal that was considered by the EAT was whether the ‘Employment Judge erred in law in concluding that the dismissal was procedurally fair because there was sufficient evidence to conclude that there had been a fair appeal.’
Mrs Elmore also argued that and no member of the panel gave evidence at the Employment Tribunal hearing and so there was no opportunity to test the reasonableness of the appeal panel’s thought process.
At the Employment Appeal Tribunal (EAT) Mrs Elmore argued ‘that it is an essential aspect of process fairness for an employee to be offered the opportunity to appeal against any formal decision made by his or her employer’. In the absence of reasons for their decision or attendance at the Employment Tribunal to explain the reasons the Employment Judge could not make a proper finding in law that the appeal was properly considered.
The EAT dismissed the appeal and in reaching the conclusions decided that the Employment Tribunal had made detailed findings about the procedure, had the opportunity to hear from key decision makers in the process and had information about the appeal process, including the minutes.
The EAT concluded that the minutes of the appeal meeting were consistent with a fair process having been followed. They also observed that Mrs Elmore did not submit any fresh evidence or argument to the appeal panel and it was therefore a rerunning of the arguments already relied upon.
It was therefore reasonable for the Employment Tribunal to make their finding that there had been a fair procedure and to draw an inference that the appeal panel had dismissed the appeal on the same grounds and for the same reasons as the original dismissal hearing.
Points to note
The Employment Tribunal in this case provided a helpful reminder and reassurance for employers that they are free to set the standards that are required of employees and to follow these through where the employee is not performing to the standard required. The Employment Tribunal will not substitute its own view of the standards required. In this case it was not sufficient for the school that Mrs Elmore was adequate but they needed her to be at a ‘good’ standard as a result of the negative inspection and results being achieved.
I often have to reassure employers and business owners that they can challenge employees who are not performing to the standard required and this case confirms that Employment Tribunals will not question your decisions as long as you behave reasonably in the application of the procedures and can demonstrate good reasoning for the decision.
Whilst in this case the Employment Tribunal and EAT were accepting of the fact that the School had not set out the reasons for refusing the Mrs Elmore’s appeal it is advisable to do so in every case and this is supported by the ACAS non-statutory guidance.
Action to take
- Ensure that those persons who undertake disciplinary and appeal procedures are given some training, support and guidance throughout the process to ensure that they get the process right;
- Each capability dismissal should be dealt with on the particular facts for the individual and it is important to ensure that you behave reasonably throughout;
- If employees are not performing to the standard that you require you need to address the issue at the earliest opportunity and the first thing you need to do is ensure that they understand the standard required;
- If you are unsure get advice and I am happy to discuss with you, 01983 987003, 023 80982006 and 01722 653001
Don’t forget getting advice from a Solicitor does not have to be complicated or costly!
Contact us on: 01983 897003, 0238 982006 or 01722 653001
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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.
The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.