can set an acceptable attendance standard and dismiss if it not met. Any dismissal based on disability that is discriminatory is unlawful. If an illness is a disability (because it hinders the employee in professional life) the employer has to make reasonable adjustments, which might mean sick pay, redistributing work, giving him a vacancy, being flexible in hours, etc. An employer must implement systems that favour the disabled person. For example, a disabled employee must be given priority over other better suited applicants if there is a vacancy for a more suitable job to his disability. In any event, the employer must take care not to unreasonably sabotage the employee's income protection insurance - there is an implied term that the employer will keep a sick employee on the books to keep his insurance going. If the employer caused the illness, e.g. a nervous breakdown, it may be less reasonable to dismiss, and the employer could end up liable for more compensation and for a longer time. But any mental illness is dangerous territory for the employer. Due to Polkey, as with capability, a failure to consult the employee will usually cause an unfair dismissal regardless of whether it would have made any difference - employers cannot just suddenly decide for themselves that an employee is a busted flush. Conduct Conduct is mainly about willingness, which can be failure to use talent through laziness or carelessness, or misbehaviour. In other words, the employee will not do the job. The intransigent type of inflexible employee, or malingerer, could be fairly dismissed on grounds of conduct, capability or SOSR. Misconduct has been distinguished from incapability as being "a failure to exercise to the full such talent as is possessed". Suspicion of a crime is an example of where the employer need only prove it believed guilt as opposed to the employee being found guilty, although an investigation is still needed, even if the crime is against the disciplinary code, but not until before termination - it can be after notice of dismissal. Acquittal makes no difference. Even being charged is sufficient, as if the CPS have decided guilt on the balance of probabilities then the employer is entitled to that safe harbour. However, the employer cannot dismiss based on the employee's legal troubles without giving him the chance to defend himself. Employers can undermine their claim that the crime made the employee