Capability and conduct should be treated separately and it’s important to recognise the difference between warning someone for a capability matter or their conduct. Some organisations have separate disciplinary procedures for dealing with capability and conduct.
Dismissal on grounds of capability could be for one of three reasons:
- Lack of or loss of an essential qualification to do the job
- Lack of ability or skill – this can be repeated minor incompetence or one serious act of incompetence (poor performance)
- Lack of capability because of ill health
If an employee loses or fails to achieve a qualification necessary to do his job, he may be dismissed on grounds of capability. However, other options should be explored if, for example, an employee whose job it is to travel to clients loses his driver’s licence for a year. Can they work from home or office? Can they use public transport? Can he do another job in the business while his licence is withheld?
Poor Work Performance
It’s the manager’s job to show that poor performance is the reason for the dismissal and that you reasonably believe your employee is not capable of working to the required standard. Rather than dismiss for a minor incompetence as a first offence, it should be something really serious like a life-threatening action or omission.
You must help the employee by doing everything reasonable to help them meet the required standard of performance by using coaching and retraining and giving a reasonable amount of time to improve. You must warn the employee before dismissal of the consequences of failure to improve.
It is not unfair to dismiss an employee who is no longer capable of working because they are too unwell to do so. In cases of long-term ill health, you should concentrate on investigating the medical facts and consulting with the affected employee about the available options.
A person may be disabled if he has a physical or mental impairment which is substantial and exercises a long-term adverse effect on his ability to carry out normal day-to-day activities.
You must consider all the other options apart from dismissal. It may be possible to find an alternative job or change the job content to accommodate the employee’s changed requirements.
As an employer, you have to be seen to be considering all the options properly and going through a fair procedure to avoid an unfair dismissal claim, even if the end result would have been the same anyway, fair procedure or no fair procedure.
Dismissal for a reason relating to the conduct of an employee will be fair, provided the procedure is properly followed. Examples of misconduct:
- Poor timekeeping
- Poor attendance
Gross misconduct is a very serious breach of conduct by the employee. It may be an act or an omission, but it is tantamount to a fundamental breach of contract by the employee. Examples of gross misconduct:
- Fighting, abusive or intimidating behaviour
- Consumption of alcohol while on duty
Your procedure must list the offences you consider to be gross misconduct in your organisation.
Post courtesy of People Alchemy – for access to the Alchemy for Managers online resource visit http://www.peoplealchemy.co.uk/catalyst