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If an employer decides you are incapable of doing your job then in theory he can dismiss you on the grounds of capability. The capability issue usually arises when you are new to a job or something happens that starts to affect your ability to do that job.

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Probation period and Capability

When most people are employed at the beginning, they are given what is commonly referred to as a probationary period to work. It is quite common that during the probationary period, he may be spoken to and it may be pointed out where you are failing to perform your duties to the satisfaction of your employer.

During your probation period, because you clearly have less than a year’s service, it is normally 3 months, the employer normally does not need a reason to dismiss you at all and can simply dismiss you with requisite statutory notice.

Once you are outside your probationary period, normally there is a contractual term that requires you to receive warnings about your capability or your job performance prior to any particular dismissal.

Capability and Poor job performance

Once you are contractually obliged to give warnings for poor performance, the performance continues to be unsatisfactory, then provided the internal procedure is followed correctly, you can eventually be dismissed on the grounds of capability. They often use the word poor performance but that is linked directly to being incapable of doing the job satisfactorily. This is frequently used for example in sales. You might appear to be the best Salesman in the world when you are taken on and you might perform well but if your sales drop off and then you are given a verbal warning for not reaching your targets and a couple of months later you get a written warning again for not meeting your targets and then a final written warning, because you are incapable of selling and can justify the dismissal shortly after that on the grounds of capability if you continue to under perform.

The problem in justifying it an Employment Tribunal in these circumstances is the target set must be reasonable, there must be training or assistance or mentoring to bring you up to standard. If they fail to bring you up to standard and act fairly in giving you time to correct the issue or provided you with reasonable training, then the Tribunal are likely to conclude that the dismissal was unfair.

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Disability discrimination

The further area of difficulty in relation to capability is its conflict with disability discrimination. We are going to be dealing with disability discrimination as a separate topic under the discrimination heading but suffice to say that if you become incapable of doing your job without further assistance and the cause of you not being able to do your job is related to a disability, then the employer is obliged to consider reasonable adjustments to take account of these problems.

I will give you an example of what I mean.


Say you are employed as a Typist and you are working on a word processor. Over a period of time you develop a condition such as rheumatoid arthritis. It causes your hand to be inflamed on occasion and it slows you down when doing your typing. Rheumatoid arthritis is capable of amounting to a disability. Employers are obliged to consider reasonable adjustments to enable that person to continue in work and that could include a change of duties. If the employer then dismisses without complying with the Disability Discrimination Act on the grounds of capability, then they will probably be discriminating against the employee on the grounds of disability.

If you have a long term condition and you have been dismissed on the grounds of capability, then you should consult with a legal advisor because you have potentially got a claim. You do not need a year’s service if you have got such a claim and it would be important to get some advice specifically about your individual circumstances.

Those adjustments can include making allowances for the slow pace of work or to someone for example - with a manual handling and dexterity problem as a result of MS, it may be that setting more reasonable targets for the completion of work is a reasonable adjustment. Other examples could include allowing for better equipment to assist the employee to keep up with their colleague.

If someone is too ill to work consistently, then the employer would dismiss them on the grounds of capability after obtaining a medical report to clarify the likely length of their absence. The smaller the business, the more the Tribunals are prepared to accept that shorter periods of absence can amount to grounds of dismissal under the capability heading.

In these circumstances, the employer is still obliged to obtain a medical report giving a diagnosis and the prognosis for the condition.

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If you are facing redundancy visit our redundancy pages.

If you are being unfairly Dismissed, visit our Unfair Dismissal pages.

If you are being disrciminated against due to race, visit our Race Discrimination pages.

If you are considering going to an Employment Tribunal then see our Employment Tribunal pages

If you are facing Constructive Dismissal, visit our Constructive Dismissal pages.

If you are losing your job due to Misconduct or Gross Misconduct, visit our Misconduct or Gross Misconduct pages.

If you are losing your job due to Capability then visit our Capability pages

If you think you may be suffering from disability discrimination then visit our disability discrimination pages

If you are being asked to sign a Compromise Agreement, then visit our Compromise Agreement pages.

If you are being put on Garden Leave then please see our Garden Leave pages


The site author/owner has endeavoured to give clear information to benefit the reader. The information is no substitute for obtaining specific advice about any claim you may have from a person qualified to give it. The examples, and circumstances described etc bear no relation to any actual case and any resemblance to real circumstances is purely accidental and unintentional. The site author/owner accepts no liability for any mistake, error or inconsistency in the text and the reader should ALWAYS OBTAIN specific advice about his/her own situation. In order to assist the reader, you can give your details so that a qualified advisor can call you free of charge and assist you further via CLAIM EVALUATOR