Conduct or capability?

Conduct or capability?

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19 Jun 2018

Conduct or capability? If an employee is not performing well, its important to understand why…is it because they can’t do the job, or parts of it, or is it because they won’t do it. The distinction is important, because it dictates the procedure we should use to manage the employee.

If an employee’s poor performance is deliberate then we are dealing with conduct, and the disciplinary procedure is the correct one to use. However if the employee can’t do something then it is an issue of capability and the performance management policy is the one to apply.

Both have informal stages, on the one hand the employee might be advised to buck up and apply himself to avoid formal disciplinary action, on the other a conversation about the reasons for the underperformance (and what you might do to assist) will be more appropriate. The 2 procedures shouldn’t be mixed up – consider a stark example: if an employee’s work is deteriorating because his sight is failing, there’s not much point warning him that his sight must improve!

For employers both procedures when correctly applied could ultimately lead to a perfectly fair dismissal, though in the case of medical conditions care should be taken, and if the employee’s condition meets the definition of ‘disability’ under the Equality Act 2010 extensive steps will need to be taken to consider reasonable adjustments and alternatives before dismissing the employee.

Both procedures carry formal steps, and in the case of short serving employees (aside from those with disabilities) the procedures can be shortened in some circumstances. Whilst the disciplinary procedure provided formal written and final warning stages with 12 month live warnings in each case, the performance management procedure is necessarily less prescriptive, but does provide one or two stages depending on the circumstances. In this procedure the employer is expected to provide help to the employee to reach the required standards and it is important that those standards are objective and measurable.

Some examples of conduct related underperformance:

  • A driver goes deliberately slowly to his last job to avoid having to do another delivery within his prescribed working hours
  • A factory worker’s output is poor because he takes smoke breaks and exceeds his breaks allowance
  • A technician doesn’t complete paperwork because he perceives it as being a waste of time

Some examples of capability related under performance

  • A warehouse worker whose output is low because of a back condition
  • A care worker who takes longer to dispense medication because his English is poor
  • A local delivery driver is slower on his route because he is unfamiliar with the area
  • An HGV driver is taking more breaks on medical advice

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