June 2012

Dear Reader,

Having clear expectations of employee performance and managing these on a daily basis are critical success factors for every business.  A high performing business knows which employees are delivering and which are failing but addressing issues of underperformance is no easy task. 

Underperformance can be as a result of incapability, laziness or misconduct.  In this issue of Working Together we look at how to distinguish between incapability and misconduct and the ways in which these can be dealt with to ensure that employees are treated fairly and reasonably whilst preserving the interests of your business. 

If you would like to comment on any aspect of the information contained within this newsletter, or to find our more information about how working in partnership with Options HR can benefit your business please do not hesitate to contact me on 0118 940 3032 or simply click here to email me.

Best wishes


Understanding Underperformance

It can be difficult to establish if poor performance is due to inherent incapability or misconduct.

Capability refers to an employee's skills, ability, aptitude and knowledge in relation to the job that he or she is employed to do.  The key feature of lack of capability is that it is not the employee's fault. Very few employees choose to perform their work badly, make mistakes, fail to complete tasks or have poor relationships with colleagues or customers.

Misconduct refers to any behaviour that falls below that of the standard required by your business or behaviour which fundamentally breaches a contract of employment such as fraud, theft, damage of company property, harassment or bullying.  There is no legal definition of misconduct, it is very much dependant on the type of business you operate, the nature of work undertaken by your employees and the risks to your business.

A lack of capability exists where no matter how hard an employee tries, he or she is simply unable to perform the job to the standard required by the employer. If an employee fails to come up to the required standard as a result of his or her own carelessness, negligence or idleness, this will not constitute incapability, but could be regarded as misconduct.

One of the key distinctions between capability and conduct is that lack of capability will usually be outside the employee's direct control, while the same employee obviously will have control over his or her conduct at work.

Managing Capability and Conduct Effectively to Avoid Dismissal

  • When a situation arises where it become obvious that performance standards are not being maintained deal with it there and then.  It is no good dealing with an issue of employee underperformance months later, not dealing with a problem in its infancy can lead to a major crisis if left to fester. 
  • Give your employee the benefit of the doubt.  If you identify an issue bring it their attention in as constructive a way as possible and work in partnership with them to develop a suitable action plan.
  • Establish the causes of poor performance e.g. insufficient training, poor working relationships, lack of understanding, lack of motivation, poor attitude etc.  Pinpoint examples of where performance is lacking, agree with the employee that they need support, set clear performance expectations going forward and take positive steps to rectify the situation such as training and coaching.
  • Consider alternative employment.  There is no positive duty on an employer to create a job for an employee who is incapable of performing his or her own job. However, a failure to offer alternative work where it exists may lead an employment tribunal to make a finding of unfair dismissal in the event that the employee is dismissed and brings such a claim.
  • Where the issue is one of misconduct rather than incapability, hold an informal meeting in the first instance to ensure that the employee understands why their behaviour has been deemed unsatisfactory.  Then you can agree steps to ensure that the behaviour does not recur.  If informal warnings have not produced the desired result and the unsatisfactory behaviour continues, the next step is to conduct a thorough investigation invoke a formal disciplinary procedure, including written warnings, before heading down the route of dismissal.
  • In the event of an act of gross misconduct you have the right to dismiss the employee, following an investigation and meeting, without notice or pay in lieu of notice.

Forthcoming Options HR Workshops

When capability and conduct issues come into play it is important to take proactive action to quickly remedy the situation whilst balancing your responsibilities in terms of employee statutory rights.

Options HR can help.

Join us for our Capability or Disciplinary Workshop taking place at Hennerton Golf Club, Wargrave on Thursday 21 June from 9.30am to 12.30pm followed by lunch.

This event will cover key pointers and advice about the best approach based on recommended good practice and the law including:

 How to approach the employee and how to expect the discussion to go.
 The right way to start and what preparation you need to do.
 What is gross misconduct and how does that fit in to the disciplinary and capability policies and procedures. What would a tribunal expect you to do?
 How to make sure you have written the right letters including invitations to meetings, the issue of warnings and what should be contained in these letters?

I regularly provide expert HR workshops on current and relevant issues facing directors, owner managers and senior managers. My aim with this workshop is to promote healthy debate and discussion in an atmosphere of trust and confidence with like-minded people.

This is your chance to find out about an HR topic in a way that is most relevant to you and your business. To reserve your place for this event please contact me on 0118 940 3032 or email me.   

We hope to see you there!



T: 0118 940 3032 / 07889 607169
18 Ridgeway
RG10 8AS