Our premier guide to understanding medical incapacity. This includes a sample process and issues to consider when contemplating termination.
Incapacity refers to an employee’s inability to perform their contractual obligations and may be grounds for the termination of employment. In terminating employment on the grounds of incapacity the Courts have laid down “rules” of procedural fairness. Failing to comply with the rules of procedural fairness may give rise to a personal grievance for unjustifiable dismissal.
Procedural fairness in the context of incapacity requires open communication, current and specialist opinion, notice of intentions, consultation and a weighing of all considerations so that the employer’s decision to dismiss is based on a full and fair inquiry, and the decision one that a fair and reasonable employer could have made in the circumstances.

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