Capability procedure

Dealing with an employee’s poor performance can be particularly difficult where you know they are simply incapable of fulfilling the tasks and duties expected of them in their role, so they aren’t really to blame. Our capability procedure ensures you deal with the problem both fairly and sympathetically.

What is capability?

Capability essentially refers to an employee’s skills, ability and knowledge in relation to their job. Where capability is lacking, this usually leads to unsatisfactory or poor work performance. The key features of a lack of capability are that, unlike with misconduct issues, it is not the employee’s fault and is usually outside the employee’s direct control.

Capability vs conduct

It may not always be clear whether poor work performance is due to misconduct or whether it is down to a genuine lack of capability on the employee’s part. Where it appears that poor performance is a misconduct issue, for example, caused by the negative attitude, carelessness, negligence or laziness of the employee, you should follow the disciplinary procedure. The Capability Procedure is intended solely for cases where poor performance is an issue of can’t perform rather than won’t perform, i.e. the employee is simply incapable of fulfilling the tasks and duties expected of them no matter how hard they try! This is why it’s important to conduct an investigation before you decide how to progress the matter - so you can assess the reasons for poor performance. If it’s still not clear, give the employee the benefit of the doubt and proceed under the capability procedure, rather than instituting disciplinary action.

Formal or informal?

You should start by investigating the underlying cause or causes of the employee’s poor performance at an informal meeting with them. At the meeting, you should state the nature of the performance issue and explain why it is a problem, giving the employee specific examples of instances where their performance has been unsatisfactory. There’s no point just telling the employee that they’re not up to scratch without citing examples. It’s better to seek the employee’s agreement that there is a problem with their performance and this can usually be achieved by not purporting to attach any blame and reminding the employee that you are on their side. Once the employee has discussed what they think the root cause of the problem is and you have restated what you expect of them in terms of job duties and targets, you should be able to agree specific action points with them and a timescale for improvement (with training where necessary). Always keep written records of all meetings and what has been agreed in terms of action points, whether they are formal or informal. With performance issues, it’s better to tackle the matter through informal counselling or coaching in the first instance rather than opting for the formal capability route and this is reflected in our capability procedure. There will, however, be situations where an informal approach does not work. Thus, schedule a follow-up meeting to review the employee’s performance and if informal action has not brought about sufficient improvement, at that point consider taking formal capability action in accordance with our capability procedure. The follow-up meeting will then be your investigatory meeting and thereafter you will need to issue our Notice of Performance Review Meeting and, if necessary, our Warning of Poor Performance.

A fair procedure

Like the disciplinary procedure, our capability procedure applies to those employees who have sufficient continuity of employment to claim unfair dismissal, that is two years, and it sets out detailed performance review provisions, including a warnings procedure, so as to ensure the procedural fairness of a capability dismissal. The proper use of this procedure is important in determining whether a dismissal is procedurally fair. We have again included a provision stating that the procedure doesn’t apply to short-serving employees, i.e. those who don’t have the general right to claim unfair dismissal.

Training

If it appears that the reason for an employee’s poor performance is lack of knowledge or skill, you should assess the employee’s specific training needs and, if necessary, provide external or internal training and coaching - or at the very least supervisory guidance. This will all be part and parcel of demonstrating that you did everything you could to assist the employee to improve their performance and in turn will help to make any subsequent dismissal fair.

Before dismissing an employee on the ground of incapability, you should consider other options such as whether alternative work exists to which the employee could be transferred and which is more suited to their abilities (only with their express agreement unless you want to face a claim for constructive dismissal!). Again, this is covered in the capability procedure. You can’t force an employee to accept a different role but, of course, if they refuse to accept it, the only other option may be dismissal if you’ve exhausted the capability procedure. Bear in mind there’s no positive duty on you to actually create an alternative job for a poorly performing employee. However, a failure to offer alternative work where it exists could lead to a finding of unfair dismissal if the employee is dismissed and brings a claim.

Dismissal

If, following two formal performance warnings and the provision of necessary support and training to improve, the employee’s performance is still unsatisfactory, you should be able to fairly dismiss them provided their performance is sufficiently bad to justify dismissal. However, you must have given the employee sufficient time and opportunity to improve to the standard required between warnings. This will normally be months rather than days or weeks, particularly if the employee is long serving.