When deciding whether performance issues should be dealt with through a capability procedure or a disciplinary procedure, you need to decide whether the poor performance amounts to misconduct or is indeed best placed as capability matter.

There is a difference between a capability procedure and a disciplinary procedure, and both capability and conduct are potentially fair reasons for dismissing an employee. However, whether it’s a disciplinary or a capability matter, it’s important that a fair procedure is followed for those with over 2 years’ service to reduce the risk of an unfair dismissal claim.

A disciplinary procedure is usually used for issues of conduct. A conduct issue is  where the employee has chosen to act in a particular way which is against the company’s policies. A capability procedure is used where the employee is not performing in terms of the job role and maybe struggling to meet their goals or objectives or making persistent mistakes, but this is not a choice, and they haven’t chosen to act in this way. A deliberate decision to behave in a particular way is likely to be a disciplinary issue whereas an attempt to perform which does not reach the required standard would be an issue of capability.

The difference in practical terms is the nature of the procedure that then follows. A disciplinary procedure dealing with misconduct is more about applying a disciplinary penalty to acknowledge wrongdoing and hopefully deter the wrongdoing from re-occurring. This could be through a written warning or perhaps a demotion. A capability procedure looks at understanding why the person is struggling to perform and its aim is to encourage better performance whilst offering support and resources to enable improved performance.

If the poor performance is solely due to a lack of understanding, resources and/or training then poor performance issues should be dealt with through a capability procedure as this offers the support and training required for the employee to improve.

Sometimes you may have difficulty in deciding whether a reason for poor performance is due to capability or conduct, and this will be down to the skill and experience of the person undertaking the investigation into the poor performance. For example, in cases of repeated mistakes, it may be down to capability or conduct – some people do deliberately make mistakes! Provided the employer makes it clear to the employee what the allegation is and the matter is investigated correctly, and an appropriate procedure and outcome is reached, an employer is unlikely to be penalised by any tribunal for applying the incorrect label.

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