Capability vs conduct

When an employee is not performing to the required standards, is it capability or conduct?

When we are talking about someone that can’t do something, this is a capability issue. They are willing and trying hard, but despite you giving them training and support, they are struggling to perform. This should be dealt with through your performance/capability procedure.

capability or conduct

When we are talking about someone who can do, but won’t do something, this is a conduct issue. This means that the employee has the necessary skills and training to perform their role, but they are, for example, lazy, dishonest, keep turning up late or refuse to carry out duties or follow reasonable instructions. These types of issues should be dealt with through your disciplinary procedure.

Key steps of the disciplinary procedure

A fair disciplinary procedure includes investigating the matter, informing the employee of the issue, holding a disciplinary hearing, allowing them to be accompanied and letting them respond to the allegations.

When considering what the most suitable sanction is, you need to look at the individual case and think what is fair and reasonable. It would be beneficial to get advice from an employment law expert before making any final decision.

Ask yourself the following questions:

  • How serious is the misconduct?
  • Is it reasonable to impose a sanction?
  • Is it clear from your disciplinary procedures what the potential sanctions could be?
  • What is the employee’s disciplinary record like? Do they have current warnings?
  • Are there any mitigating factors or circumstances? (for example, previous good conduct, were they provoked, etc)
  • Does everyone do it? It is generally accepted that people do this around the workplace?
  • What sanctions have you imposed in other similar cases? If you decide to dismiss one employee and only give another a first written warning for the same offence, you must be able to justify the decision.

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Decision

Employers may decide that no further action is necessary or issue a written warning or final warning, dismiss them or take other types of action short of dismissal (these can only be taken if it is clearly specified in the employee’s Contract of Employment and the employee agrees to it).

If you have given an employee previous warnings, you may decide the most suitable response to the misconduct is dismissal. You will need to notify the employee of your decision as soon as possible, explaining the reasons, the day their employment will end and their right to appeal.

Generally, employers should not dismiss an employee for one single act of misconduct unless it is regarded as an act of gross misconduct. If this is the case, they can be dismissed without warnings, notice or payment in lieu of notice.

Key steps of capability/performance management procedure

At first, you should try and deal with the employee’s performance issue informally. If this doesn’t work, ensure you carry out an investigation to gather all the fact before holding a formal performance management meeting,

You should invite them to an initial Performance Review Hearing, explaining your performance concerns and possible outcomes that could come out the meeting.

If it is considered that performance is unsatisfactory, and there are no legitimate reasons for this, you should give the employee a Performance Improvement Plan, which specifies what they need to improve on, the period of review and the potential outcomes if their performance doesn’t improve.

If the deadline within the performance improvement plan passes and they still haven’t brought their performance up to the level required, this should be investigated. You may need to hold another hearing which could result in the period of review being extended or a formal first or final written warning being issued.

If they do not improve, you may need to consider dismissal or any options just short of dismissal, for example, redeploying them into another suitable job. Again, you can only move an employee if they agree or there is a provision in the employee’s contract that allows this.

Employees should not normally be dismissed for performance reasons unless they have received previous warnings. They must understand their shortcomings and be given the chance to improve. You must also have provided them with support and considered any viable alternatives to dismissal.

It is important to remember that at any meetings under the formal procedure, the employee must be allowed to be accompanied by a colleague or trade union official and they should be given the opportunity to appeal at each stage of the procedure.

For those with less than two years’ service

For employees with less than two years’ service, the procedure may be condensed. We would strongly urge you to seek advice to discuss this further, particularly if there are potential discriminatory issues.

To discuss this further, please contact your Employment Law Adviser.

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Director of Legal Services

James Tamm

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