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1. Introduction

Capability dismissals — dismissals on the ground that the employee is no longer able to perform the duties of the role, typically by reason of ill health — are recognised by Section 6(4)(a) of the Unfair Dismissals Acts 1977 to 2015 as a potential basis for a fair dismissal. The procedural and substantive requirements are demanding.

This article sets out the framework for capability dismissals, including the obligation to obtain proper medical evidence, the duty to consider reasonable accommodation, and the procedural requirements of consultation, alternative employment and right of appeal.

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2. Legislation and Case Law

Section 6(4)(a) of the Unfair Dismissals Act 1977 provides that the dismissal of an employee shall be deemed not to be unfair if it results wholly or mainly from the capability, competence or qualifications of the employee for performing work of the kind which he was employed to do.

The leading procedural authority is Bolger v Showerings (Ireland) Ltd [1990] ELR 184, in which the Employment Appeals Tribunal set out the requirements: that ill health was the reason for the dismissal, that the reason was substantial, that the employee received fair notice that dismissal for incapacity was being considered, and that the employee was afforded an opportunity to be heard.

The interaction with the Employment Equality Acts is significant. Where the employee’s incapacity arises from a disability within the meaning of Section 2 of the 1998 Acts, the employer has, in addition, an obligation under Section 16 of the 1998 Acts to provide reasonable accommodation. The leading authority is Nano Nagle School v Daly [2019] IESC 63.

The procedural framework can be summarised as follows: obtain up-to-date independent medical advice; meet with the employee; consider reasonable accommodation; consider alternative employment; afford the employee an opportunity to respond; take the decision having regard to all the information; and provide a right of appeal. 

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3. Decision

The decided cases turn on whether the employer has followed the Bolger v Showerings procedural template. Where the employer has obtained current independent medical evidence, has engaged with the employee, has considered reasonable accommodation and alternative employment, and has acted reasonably, the dismissal will, in general, be upheld.

Where the employer has relied on stale medical evidence, has failed to engage with the employee, has not considered reasonable accommodation, or has rushed the decision, the dismissal is likely to be found unfair. The proper time to obtain medical evidence is shortly before the decision is taken.

The duty of reasonable accommodation requires the employer to consider what measures might enable the employee to continue working. The duty is not unlimited: an employer is not required to retain an employee who cannot perform the essential tasks of the role even with accommodation. But the consideration must be genuine and documented.

Alternative employment must also be considered. Where the employer has other roles that the employee, with or without accommodation, might be able to perform, those roles must be considered. The duty does not require the employer to create a role, but it does require reasonable inquiry of available vacancies.

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4. Takeaway

Capability dismissals are recognised by the 1977 Acts but subject to demanding procedural and substantive requirements. Employers who fail to follow the Bolger v Showerings template will, in general, face a successful unfair dismissal complaint.

For employers, the practical advice is to obtain current independent medical evidence (typically from an occupational health physician), to meet with the employee in advance of any decision, to consider reasonable accommodation in detail, to consider alternative employment, and to document the process throughout.

Employers should also be alert to the interaction with the Employment Equality Acts. Where the underlying condition is a disability, the reasonable accommodation duty is substantive and is best evidenced by detailed engagement with occupational health and with the employee.

For employees, the practical advice is to engage constructively with the employer’s process, to provide medical evidence on a timely basis, to attend meetings (with a representative where helpful), and to advance any proposals for reasonable accommodation in writing.

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5. Further information

This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.

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6. About Crushell & Co

Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.

We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.

Connect: @CrushellLaw or www.crushell.ie