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It’s a potentially fair reason to dismiss an employee for poor work performance due to lack of capability, provided a proper procedure is followed which is fair and reasonable in all the circumstances. So, what procedure should be followed and how, if at all, is this different to a disciplinary procedure?
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 feature of a lack of capability is that, unlike with misconduct issues, it is not the employee’s fault.
Capability v. 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 your disciplinary procedure. A separate capability, or performance review, 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.
Causes of poor performance
There are many causes of poor performance including:
Insufficient training.
Poor systems of work.
Ineffective tools and equipment.
Inadequate supervision and support.
Unclear instructions.
Work overload.
Unrealistic targets or deadlines.
Poor working relationships with other employees or managers.
Physical or mental illness – bear in mind the provisions of the Disability Discrimination Act 1995 here and, in particular, the duty to make reasonable adjustments to work provisions, criteria or practices.
Personal problems.
Formal or informal?
As an employer, you should start by investigating the underlying causes of the employee’s poor performance at an informal meeting with him or her. 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 his or her performance has been unsatisfactory.
It is 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 you are on their side. Once the employee has discussed what they believe 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 agree specific action points with them and a timescale for improvement, providing further training where necessary.
Always keep written records of all meetings and agreed action points, whether they are formal or informal.
With performance issues, it is usually better to tackle the matter through informal counselling or coaching in the first instance rather than opting for instituting a formal 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. The follow-up meeting will then be your investigatory meeting.
A fair capability procedure
A capability procedure should play a key role in how you deal with staff performance issues. A fair procedure will depend on the facts of each individual case but should include the following:
Formal performance review meetings.
An opportunity to allow for improvement in performance – three months overall is usually adequate but when dealing with a long-serving or senior employe
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