Abilities and Capabilities

Employees “Abilities and Capabilities” – Workplace Risk Assessments

The employer has a ‘duty of care’ to make sure that the employees’ “abilities and capabilities” are suited to the position for which s/he was employed to undertake, and as such, do not pose a ‘risk of harm’ to the employee’s health.

The MHSWR 1999 R.13(1) states: “Every employer shall,entrusting tasks to his employees, take into account capabilities as regards health and safety.”

The Health And Safety Executives “Management Standards” state: “Employees indicate that they able to cope with their jobs – people’s skills and abilities are matched to the job demands – jobs are designed to be within the capabilities of employees.”

From my own experiences, the employer will endeavour at some point, to call into question an employee’s “abilities and capabilities” for having lodged a letter of grievance. This is part and parcel of the employer’s ‘dirty tricks campaign’ and usually undertaken as a reprisal due to the aggrieved employee having lodged a letter of grievance. However, such conduct by the employer may amount to either “victimisation” or “detrimental treatment” under the Equality Act 2010 and Employment Rights Act 1996.

The fastest way for an employer to boot an employee who it no longer views as a ‘team player’ – is to use the excuse that the aggrieved employee was ‘under performing’. On each of the three occasions I have invoked the grievance procedure, each employer sank to this level of skulduggery. This is why I suggest, that at the time you lodge your letter of grievance with your employer to invoke the grievance procedure, you make it clear that the discrimination, harassment and/or workplace stress purported upon your person is having a detrimental impact upon your abilities and capabilities (see the grievance letter example). This way, an attempt by your employer to pull this little number out of the goodie bag, will amount to (i) “less favourable treatment” (ii) “victimisation” or (iii) “detrimental treatment” under the Equality Act 2010 / Employment Rights Act 1996, making it potentially liable to pay you compensation.

Performance Improvement Plan [PIP]

I have helped hundreds of people write letters of grievance to their employer to invoke the grievance procedure when the employer has put the employee on a PIP (performance improvement plan). Usually, the employer will implement the pip to get rid of the employee and manage them out of the Company to save paying redundancy. Please see the web page on this site titled – Performance Improvement Plan. It is often the case that a new line manager has come along who is indifferent to you, and wants you gone, or wants to bring one of their old work pals to replace you. If this is happening to you, then contact me. I have helped so many employees’ when they have faced this impossible situation, and have been very successful in getting the performance improvement plan dropped.

In fact, it is often the case that subjecting the employee to the performance improvement plan is discriminatory, as the employer has failed to articulate that the employee actually has an ‘impairment’ which qualifies as a ‘disability’.

In Ministry of Defence v Hay (2008) Mr Justice Langstaff, sitting in the EAT, reminds us that the concept of disability in the Act is not a medical model, but a ‘functional’ model because the definition focuses on ‘impairment’. An ‘impairment’ is not the same as a ‘disability’. It is directed towards what a claimant cannot, or can no longer do at a practical level. Thus a constellation of symptoms which lasted over 12 months, even though the precise disability on which the claim was based according to expert evidence would have lasted less than 12 months, can be regarded as a combination of impairments with different effects, to different extents, over periods of time which overlapped and which constitutes a qualifying disability.