Mythbusting.  Lawyers guide to capability meetings.

Truth or myth? Employee must be present at a capability meeting

This is a myth.

It is not uncommon for a capability procedure to stall or even come to a complete standstill because the employee is refusing to attend a capability meeting. Without the meeting going ahead, the employer is unable to continue with the necessary stages of the process and a resolution one way or another remains pending. This does not have to be the case, however, since a capability meeting can also be held in the employee’s absence. As long as the employee has been given reasonable opportunity to attend or to submit responses in writing, the employer can justifiably proceed without the employee present.

Honeydew Health asked Vista Employer Services Ltd, an employment law expert, to explain the legal framework around a capability procedure in more detail:

There is no standard period that employers have to wait before they can consider starting the capability procedure with an absent employee. The question of when it may be reasonable to dismiss, depends on factors such as how long the employer has waited so far; whether and, if so, when the employee is likely to return; whether reasonable adjustments can be made; whether there is any available and suitable alternative employment; the financial and operational impact of the employee’s continuing absence.

Before making any decisions the employer should arrange a further meeting with the employee. The employee should be informed in advance that dismissal is a possible outcome of the meeting and informed of their right to be accompanied at the meeting.

If there is a dispute as to the employee’s fitness to attend a meeting it may be necessary to obtain medical evidence to determine whether they are fit enough to attend. If the employee is certified fit to attend the meeting but refuses to do so the employer can proceed in the employee’s absence. If the employee is unfit to attend the meeting then it may be reasonable to delay it for a short period to allow the employee to recover fitness to attend. However, if the employee will not be able to attend within a reasonable period then the meeting may proceed in his/her absence. If the employee cannot attend the meeting within a reasonable time then the employer may invite the employee to make submissions in writing or allow the employee to send a companion (i.e. a colleague or trade union representative) to speak on his/her behalf.

At the meeting the employee should have the opportunity to put their case and outline any alternatives to dismissal on the grounds of ill health capability. The employer should address any concerns that the employee has with the steps taken so far. Consideration should be given to alternatives to dismissal, specifically redeployment opportunities and if applicable PHI or ill health retirement. In the event that the employee raises any significant new information the employer should be prepared to adjourn to consider the new evidence.

Following the final meeting, where the employer is satisfied that they have sufficient information upon which to reach a decision, they should write to the employee outlining the length of absence; the effect on the business; a summary of medical evidence; the outcome of previous consultation meetings; the feasibility or otherwise of making reasonable adjustments; the absence of alternative employment. Employees should be given the right of appeal against the employer’s decision.

This guidance was written by our partner, Vista, who are experts in Employment law, Occupational Health, Management Training and Outsourced HR Services.