Ill Health (Capability) policy

This model policy is intended to provide an example to employers and employees of good practice. It is not intended to represent a statement of the law.

JACS recognises that it is often difficult for small employers (i.e. those with a single manager/owner and a very small number of employees) to conform to all the recommendations below. In particular, such employers may find it impossible to hold a capability appeal using a different person to chair the appeal than the person who took investigated the grievance in the first place. Similarly, the size of an organisation may make it inevitable that the same person chairs a capability hearing having previously acted as the investigator in the matter. In the Employment Law the Tribunal is able to consider the size and administration resources of the organisation in determining whether the employer acted reasonably. Providing employers in small organisations make every effort to ensure fairness, despite the limitations of their resources, the Tribunal should take that into account.


Please bear in mind the duty to make reasonable adjustments as per the Disability Discrimination Regulations.

A model poor performance (capability) policy and procedure

(While this policy forms part of the terms of employment it is not contractually binding).

Purpose of the Policy - The Company will at all times endeavour to ensure that you achieve and maintain a high standard of performance in your work. To this end it will ensure that standards are established, performance is monitored and that you are given appropriate training and support to meet these standards.  At all times the confidential nature of any problems will be maintained by both the employee and the employer.  Records and minutes of all discussions and meetings must be made and retained in case of future claims.

Statutory Entitlement - Right to representation - Employees have the statutory right to be represented at any formal part of a capability investigation.  This representative can be either a work colleague, union shop steward from within the organisation (if applicable) or a full-time union officer even if the company does not recognise that Union.  The representative has the right to speak on behalf of the employee, state their case, and summarise the points made.  However, the representative cannot answer questions on behalf of the employee.

Capability - prolonged absence

All prolonged absence from work and its effect on departments will be kept under review.

a)    The Company will contact the employee to ascertain their current condition and prospects of returning to work. This discussion may take place at the workplace but if the employee is not yet mobile, the employee may be visited at home.

b)    If these discussions do not clarify the position, the Company will ask for a report from the employee's doctor stating when the employee will be fit to return to work. Or the Company may also ask the employee to undergo a medical examination by a Company nominated doctor.

Once all reliable medical evidence has been obtained, a decision about the employee's future will be made. If dismissal is a possibility, the following factors will be considered:

  • the nature of the illness
  • whether the illness is likely to recur
  • the length of absences and intervals of good health (in the case of intermittent absences)
  • how essential it is for the particular employee to do the work in  question (e.g. if the  employee plays a key role there may be a significant pressure to replace them)
  • has a risk assessment (if appropriate) been carried out
  • are there any opportunities for re-deployment
  • the impact of absences on colleagues
  • the contractual period of sick pay entitlement
  • how viable it is, both practically and economically, to hire temporary staff to perform the employee's duties until they are capable to return
  • a thorough review of the employee's personal circumstances
  • whether it has been made clear to the employee that a possible decision regarding dismissal is imminent
  • any other relevant contractual provisions e.g. Permanent Health Insurance or similar provisions.

c) Having considered medical reports and Company requirements, before any decision to dismiss is taken the employee will be given the opportunity to make representations. If the employee is unable to attend personally, a representative may attend in their place.

d) If the employment contract is to be terminated, full notice entitlement will be given. If recovery seems possible during notice the Company reserves the right to reconsider its decision to dismiss, but does not undertake to rescind its decision.

e) Generally, no decision to dismiss will be taken until you have exhausted your right to contractual sick pay.

f) The employee should be advised of the right of appeal which should be submitted within  5 working days.

Click here to see our short video on following a fair process.



February 2023




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