Capability vs Conduct

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When an employer is dealing with a situation due to an employee falling short of the standards expected of them within a workplace, it is important to remember that disciplinary and capability procedures are there to encourage an improvement in an employee’s work performance or conduct. Yes, there are circumstances, where appropriate, that could result in dismissal, but this should usually be the last resort. Before embarking on formal action, the employer must establish whether the employee is falling short of the standards because of their capability or conduct. Put simply, Capability is CAN’T and conduct is WON’T. For this reason, it is advisable to always have a separate disciplinary procedure and a capability procedure. Capability procedures, sometimes referred to as Inefficiency procedures, are invoked when even after appropriate training an employee CAN’T achieve or maintain the performance standards necessary for their job. Disciplinary or Conduct procedures are invoked when through carelessness, negligence or wilfulness the employee WON’T perform to the required standards of conduct. To determine which procedure to follow, hold a fact finding interview with the employee. Check what their understanding of what is expected of them is. Don’t assume they know. Allow the employee to tell you. If they can clearly explain and demonstrate they know how they should be performing or behaving then ask them why their performance/conduct falls short then? This would be a conduct issue. If they were unable to explain satisfactorily or demonstrate the standard they should be working to, then perhaps they require further coaching or training to achieve the standard expected. In this instance follow the inefficiency/capability procedure. Finally there are varying levels for conduct, so again ensure your disciplinary procedure is clear on what constitutes misconduct and gross misconduct so that your employees understand. The reason for this is to ensure natural justice and fairness prevails, certainly this is what an Employment Tribunal may well end up considering whether any sanctions applied including dismissal were fair. If the correct procedure was not followed, even if a warning or dismissal is the right decision, then the sanction ultimately becomes unfair.

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