An employee's poor performance is a potentiality fair reason for dismissal under the Employment Rights Act 1996, as it would amount to lack of capability. This should be assessed by reference to an employee's "skill, aptitude, health or any other physical or mental quality" and must relate to the work that they were employed to do.
In order for a dismissal for poor performance to be fair, an employee must be warned that they need to improve, be given reasonable targets for improvement within a realistic timescale and be offered appropriate training and/or support during the monitoring period.
Generally, the reasonableness of such dismissals would be measured against the following criteria:
- Did the employer have reasonable belief in the employee's incompetence;
- Was the situation investigated and was the employee given the opportunity to voice their side of the story;
- Was the employee aware of what was required of them in terms of satisfactory performance;
- Were steps taken to minimise the risk of poor performance through training, supervision, etc;
- Was a proper appraisal conducted and was the problem identified in a timely manner;
- Was the employee told of the consequences of failing to improve and were they actually given the chance to improve their performance;
- Did the employer consider offering alternative employment.
The above are just examples and what a tribunal would generally look for when deciding the reasonableness of a dismissal. If there is a genuine belief or evidence that the employer has acted in a rather heavy-handed manner and not satisfied at least some of the above requirements, the dismissal could be challenged.
Another issue is your condition. It is not the DDA that applies any longer, this was replaced by the Equality Act 2010 and you will have to show that you were disabled. In the legal sense of the word, disability can have a broad meaning and there is no single list of medical conditions that qualify. Instead, to establish whether a person is disabled, they need to show that they meet the legal definition of a ‘disability’.
The Equality Act 2010 defines a disability as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.
I will break this definition down:
- Physical or mental impairment – this can include nearly any medical condition;
- Substantial effect – the effect must be more than minor or trivial;
- Long-term - the effect of the impairment must either have lasted or be likely to last for at least 12 months;
- Normal day-to-day activities – these could include anything considered ‘normal’ in a person's normal daily routine (e.g. walking, driving, speaking, eating, washing, etc.)
If a person satisfies the above criteria, they will be classified as being disabled and will have automatic protection against discrimination, which means that they must not be treated unfavourably because of their disability. In addition, their employer would have a duty to make reasonable adjustments if they are likely to be placed at a substantial disadvantage when compared to non-disabled employees.
What amounts to ‘reasonable adjustments’ can have a wide interpretation and often depends on the individual circumstances. Below are some examples:
- making adjustments to work premises;
- allocating some of the employee’s duties to others;
- transferring the employee to fill an existing suitable vacancy;
- altering the employee’s hours of work;
- allowing the employee to be absent during working hours for rehabilitation, assessment or treatment connected to their disability;
- acquiring or modifying specialist equipment;
- providing supervision or other support.
If someone who is disabled is being treated unfavourably because of their disability or their employer has failed to make reasonable adjustments it would potentially amount to disability discrimination. The first step would be to raise a formal grievance. The next step would be to consider whether a claim for disability discrimination should be made in an employment tribunal (the time limit for claiming is only 3 months from the date of the alleged discriminatory act taking place).
If this was to result in a dismissal, the first step is to appeal directly to the employer within the allocated time for an internal appeal. After that the only viable option is to consider a claim for unfair dismissal in an employment tribunal, subject to having at least 2 years' continuous service. There is a strict time limit of 3 months from the date of dismissal to issue such a claim.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you