Furlough and Unfair Dismissal 

Capability dismissals generally fall into two categories: not capable due to ill-health and not doing your job to a reasonable standard. 

 

Ill-health can mean that your long-term absence for medical reasons is placing your employer in economic difficulty, or your health prevents you from fulfilling your role. This could be the case if your health has declined while you were on furlough. However, if your physical or mental impairment has a substantial, long-term effect on your ability to carry out day-to-day activities, you will have some protection under The Equality Act. In particular, your employer must make reasonable adjustments to help you complete your duties. 

 

Performance-related capability dismissals often occur after a prolonged period of under-performance. Some employees may find it difficult adjusting to the workplace following furlough, especially if the workplace or work processes have changed significantly. Your employer would need to show that dismissal was a reasonable response, which could be difficult if they have not offered training or support before dismissal. 

 

This could include failure to adapt to changes brought about by the pandemic. Issues such as vaccinations and masks also seem to be particularly fraught, leading to the possibility of more disputes within the workplace. 

 

Again, your employer would need to show that dismissal was a reasonable response, for example by showing that you were given chance to improve the situation but did not respond to training, mediation or other reasonable approaches.