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Recent case law suggests that dismissals based on capability must be subject to the same standard of proof as a conduct case, applying 3 Steps:
1) Is there a genuine belief that the employee is not capable of undertaking the job at hand
2) has reasonable investigation been undertaken into the medical condition/ well-being of the employee on which a decision can be made
3) Can a genuine decision now be made, with reasonable justifiable grounds to back up that decision?
If all three of these steps are undertaken and can be proven, then a dismissal on the grounds of capability should be deemed fair. Employers should look to make thorough investigation before any decision is made in regards to capability so as to cover their own backs.