Lack of capability, including when assessed with reference to health, is a potentially fair reason for dismissal under s.98 of the Employment Rights Act 1996. As an employer, you must show that you acted reasonably both in treating the long-term ill health as a sufficient reason for dismissing the employee and in the procedure adopted to effect the dismissal.

When you are considering dismissing an employee on grounds of long-term ill health, you should investigate the prospects of the employee being able to return to work within a reasonable time and with expert medical advice via an Occupational Health provider.

A fair procedure should include:

• consultation with the employee;
• a medical investigation;
• consideration of alternative employment; and
• possible ill-health early retirement if there is provision for this.

The decision to dismiss is not a medical question but one for you as the employer to take in light of the medical evidence available to you. However, the fact that an employer has obtained medical evidence does not absolve it of the requirement to consult personally with the employee.

If you dismisses an employee on the grounds of ill health without considering any reasonable steps that you could take to enable the employee to return to work, you may find yourself to be liable for disability discrimination as well as unfair dismissal, if the employee is considered to be disabled within the meaning of the Equality Act 2010.

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