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What is a Capability Procedure in Employment Law?

If an employee is unable to do their job effectively, there are a number of possible causes that will generally fall into two categories: conduct or capability. Often, this becomes a problem when the employee is not meeting the standards specified in their employment contract, job description, or in documentation they were given when they started the job - such as an employee handbook or workplace policy document.

Here, the solicitors at Clough & Willis will explain the differences between conduct and capability concerns, detail how you can deal with an employee who isn’t meeting the required standards, and answer the question: what is a capability procedure in employment law?

Conduct versus capability

It is important for employers to know the difference between conduct and capability problems, and to be able to identify these in order to take appropriate action. If an employee is not meeting the expected standard, this could be due to either of these problems, but there are differences in how they manifest and how they should be dealt with.

Conduct problems mean that the employee is behaving in a way that is contrary to their employer’s standards. There are many different ways that conduct could affect someone’s work, but this type of procedure is usually relevant in cases where the employee has control over their actions. For example, if an employee refuses to follow a reasonable instruction, or pretends to be sick in order to avoid their work responsibilities,  - these are conduct problems and you are within your rights as an employer to pursue disciplinary action against the employee in question.

On the other hand, capability refers to factors outside of an employee’s control that may affect how effectively they are able to perform their duties. This can mean, for example, that an employee has a disability that interferes with their job, or has become too ill to do their job to the required standard. If an employee is disabled their employer has a legal duty to make reasonable adjustments for this. Launching a capability procedure is only appropriate in cases where you have made these adjustments, but the employee still cannot fulfil their obligations.

How does a capability procedure work?

The function of a capability procedure is to gain an understanding of why an employee is performing poorly and to develop strategies that could help to alleviate the problem. While some companies approach this type of procedure as a mere precursor to dismissal, it is better to actually engage with the employee in good faith, with the aim of helping them to achieve the necessary standard where possible.

Most businesses will already have a capability procedure in place. If not, you can find templates and suggestions online that will need to be adjusted according to the needs of your specific industry or company. There is no specific legal standard for a fair procedure, but you should take care to understand the laws surrounding unfair dismissal and take every effort to meet your legal obligations.

With that said, failing a capability procedure is often grounds for dismissal, but you must follow an appropriate procedure under employment law, rather than dismissing the employee out of hand, in order to ensure that your legal obligations are met. Otherwise, the employee may have grounds for an unfair dismissal claim against you.

If you have specific questions about an employment law issue or need guidance about conducting a capability procedure, contact the experts at Clough & Willis today. Call us on 0800 083 0815, or fill out our online enquiry form and we will call you back at your convenience.


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