Luke Watkeys, Business Manager
· The employee’s Capability or qualifications for the job.
· The employee’s Conduct
· Statutory Grounds i.e. because a statutory duty or restriction prohibits the employment being continued (e.g. if a lorry driver losing his driving license would no longer be able to comply with the law which governs his job);
· Some other substantial reason, or SOSR (e.g. long term imprisonment of the employee would mean that they were no longer able to undertake the work they are being paid to do)
We’re going to focus on the first two today. Both reasons focus on the employee’s performance at work. As such they will be the most familiar to those managers who have ever had to dismiss someone for poor performance or misconduct.
Always dismiss someone using the correct reason from the list above, considering all the options properly, and going through a fair procedure. If you don’t, you may end up with an unfair dismissal claim, even if the end result would have been the same anyway. This is why when dealing with poor performance the distinction between conduct and capability is so important.
The first thing to remember is that conduct and capability issues have completely different underlying causes. Any wrongdoing that results from an employee deliberately behaving in a way that prevents them from reaching your required standards will always fall under conduct. In other words, it’s a matter of ‘won’t do’ rather than ’can’t do’.
On the other side of the coin, any poor performance resulting from a lack of skill and ability will fall under capability. Often the employee will really want to perform, but find that they’re unable to. This is a case of ‘can’t do’ rather than ‘won’t do’.
To illustrate this point further, let’s imagine the following case:
‘We have an employee whose work performance was once excellent but has now declined. They haven’t changed their job and the standards and expectations haven’t changed either.’
The temptation may be to assume that the employee can’t perform and use a capability policy. But what if they are choosing not to - what if they ‘won’t’ perform for some reason? Doesn’t the fact that they were able to do the job excellently in the past suggest that this may be the case?
As far as you can, investigate and reveal the root causes, so that you can then commence the correct set of proceedings, or both if the wrongdoing warrants it. If the employee doesn’t offer any plausible explanation, or there’s no other underlying factor, you can reasonably assume it’s a conduct issue.
So let’s say we’ve identified the cause, and chosen to invoke the correct procedure- what’s the difference in approach? Within a capability procedure, your approach is far more supportive; you’ll collect evidence to substantiate the claim that performance is consistently below the required standard and in deciding whether an employer was reasonable in dismissing for capability, it will be important to evidence that reasonable training and support was given to the employee.
Poor performance as a result of an employee’s inaction, rather than inability should result in disciplinary action (e.g. a warning), following a thorough investigation.
If an employee won’t do something, think conduct; can’t do, think capability.