Head of Employment Jolyon Berry talks about capability and conduct processes, what the difference is and how best to handle them.

Here’s how to mess up the capability process – imagine that an employee is not quite there for whatever reason.  If you believe that an employee’s performance needs to improve, it’s important you take steps to discover whether the issue in their work is down to conduct or capability.

Conduct vs. Capability

An HR Rule of Thumb is that ‘Can’t’ means capability, and ‘Won’t’ means conduct.  It’s a good rule and a good disciplinary process is essential if an employee is subject to a warning which carries all sorts of stigma and risk (eg re entitlement to bonuses, selection for redundancy etc), or if the employee is dismissed.  During any dispute arising from an allegation of misconduct, process is always subject to detailed scrutiny to ensure all was fair and reasonable in the circumstances.  The result is that employers make copious notes and follow everything up in writing, which inevitably creates tension from the parties’ roles as accuser/prosecutor v defendant.

However in a capability process, there has not been an event (misconduct); there is a situation (poor performance) in respect of which there can be many reasons why; lack of experience, poor training, work load, personal issues including health etc.  

The easiest way to mess up a performance/capability process is to treat it as a misconduct issue!

Too often capability procedures are copy and paste versions of conduct procedures with the only change being by reference to ‘capability’.  It is true that the outcome of these procedures can be the same; warnings and ultimately dismissal, but the route to them should be very different.

Informal and formal

A common mistake is believing that ‘informal’ procedures don’t count for anything, which is understandable if there are no notes of meetings, clarity about what has been said and agreed or what action points (if any) arose from these chats.  The problem is that a subsequent formal procedure starting from scratch without reference to informal procedures will be inefficient and if informal steps by managers are not recognised there could be other difficulties; diving apparently straight into formal action by HR can look heavy-handed and/or disempower and demotivate managers from tackling issues on the ground.

Before any formal procedures are started, finding out what has taken place informally is not difficult.  Problems and steps taken to date can be identified and recorded with some sort of action plan being agreed and put in place that might lead to the application of a disciplinary or capability procedure.

Bigger problems arise when the management of performance looks too much like the management of a conduct issue.

When formal capability action is necessary, the relevant manager(s), the employee and HR should work together to identify problems, solutions and action points.  The process does not have to be soft and fluffy and warnings can be serious but the ideal capability process should recognise informal and formal discussions and build in intensity. A collaborative approach to performance management is far more likely to be effective and fair than treating a poor performer like someone who has committed an offensive act. 

How we can help

The template ‘file notes for improvement’ and ‘letters of concern’ are included in the suite of documents that we have made available to those with our HR Buddy or HR Partner service.  Please contact Heidi Love for free, no obligation access to these documents or be in touch with TSP’s employment team for assistance with any staff related matter.