Summary
- Conduct issues arise when an employee wilfully fails to meet expected standards of behaviour, such as refusing to complete tasks or falsely claiming sick leave, and are addressed through a disciplinary procedure.
- Capability issues arise when an employee is unable to perform their role due to factors outside their control, such as illness, lack of skills, or insufficient training, and are addressed through a capability or performance management procedure.
- Both conduct and capability issues can be dealt with informally in the first instance, but if informal steps fail, the correct formal procedure must be followed, as using the wrong process can undermine a fair dismissal.
- This article explains the difference between conduct and capability for employers managing poor performance in England and Wales.
- LegalVision, a commercial law firm specialising in advising clients on employment law, outlines how to identify which issue applies and how to respond appropriately.
Tips for Businesses
Ask whether the employee “will not” or “cannot” perform the task to identify whether the issue is conduct or capability. Always attempt informal resolution first. If formal action is needed, ensure you follow the correct procedure for the issue identified, as applying the wrong process may expose you to an unfair dismissal claim.
Poor performance – also known as underperformance – arises when an employee fails to meet the standards required of their role, and it can stem from either conduct or capability issues. Identifying which applies is essential, as each requires a different procedure to address it effectively. This article will explain the differences between conduct and capability.
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What is Conduct in Terms of Performance?
Conduct issues concern your employee’s performance at work regarding their behaviour. For example, your employee may show little care for your workplace rules leading to misconduct that breaches their employment contract.
Notably, your employee has control over conduct issues. For example, employees exhibit conduct issues when they are:
- unwilling to carry out important work;
- purposely neglectful of their responsibilities; or
- able to do something but refuse to.
Examples of potential poor conduct include your employee:
- telling you that they are ill and to miss work when they are not sick; or
- failing to complete required paperwork related to the role as they feel it is time-wasting.
If faced with an issue of performance related to an employee’s conduct, you should initially attempt to take informal action. You might deal with poor conduct by, for example, having a stern word with your employee to improve their behaviour.
What is Capability in Terms of Performance?
On the other hand, a capability issue concerns your employee’s performance at work and if they struggle to carry out their job role. A capability issue means that your employee cannot perform their job responsibilities. Importantly, employees do not have control over a capability issue. Employees have capability issues when they:
- want to carry out a task but are unable to, for example, due to sickness;
- do not have the skills required for the role; or
- try but cannot meet the required standard, for example, due to lack of training.
Suppose you have an employee who is showing signs of poor performance in terms of capability, and informal procedures fail. In that case, you should deal with it formally through either a capability or a performance management procedure. It is best to always try to resolve capability issues informally. To informally resolve capability issues, you can:
- establish what is causing the under performance and;
- suggest solutions to the issues, for example, adequate training or coaching to enable your employee to carry out their role effectively.
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What are the Key Similarities and Differences Between Conduct and Capability?
A common way to distinguish between your employee’s issues of under performance is to ask yourself if they ‘cannot’ do the work or if they ‘will not’ carry the work. Where they ‘cannot’ it is a capability issue, and where they ‘will not’ it is a conduct issue.
The following table outlines the key similarities and differences between poor performance related to conduct or related to capability.
| Conduct | Capability | |
| Similarities | You can deal with the issues informally These issues can lead to a fair dismissal | |
| Differences | Conduct concerns your employee’s behaviour when carrying out the job. Your employee has control over their poor performance A formal procedure to deal with these issues is a disciplinary procedure Your employee has the required skills for the role but is unwilling and neglectful. | Capability concerns your employee’s ability to do their role. Your employee has no control over their poor performance. A formal procedure to deal with these issues is a capability or performance management procedure. Your employee does not have the required skills for the role but wants to perform well and do their best. |
Key Takeaways
When your employees are not performing as they should in their job role, this can be due to conduct or capability issues. Whilst both leave you with the issue of an employee who is not performing as they should, they are two different issues with some similarities. You can deal with both informally, but there is a different formal procedure to tackle each issue, should informal procedures fail.
Poor conduct requires you to use a disciplinary procedure, and poor capability requires you to either use a capability or a performance management procedure. You must understand the differences between the two to deal with the issue of poor performance correctly and effectively.
If you need help understanding the difference between conduct and capability when it comes to performance in England and Wales, LegalVision provides ongoing legal support for businesses through our fixed-fee legal membership. Our experienced employment lawyers help businesses manage contracts, employment law, disputes, intellectual property, and more, with unlimited access to specialist lawyers for a fixed monthly fee. To learn more about LegalVision’s legal membership, call 0808 196 8584 or visit our membership page.
Frequently Asked Questions
Poor conduct in the workplace is when your employee is not performing as you require them to in terms of their behaviour. Poor capability is intentional, so your employee purposely will not do as they should.
Poor capability in the workplace is when your employee is not performing as you require them to in terms of how they carry out their tasks. Poor capability is not intentional, and your employee simply can not work to the standard you require of them.
Ask yourself whether your employee ‘cannot’ do the work or ‘will not’ do it. If they cannot perform the task, it is a capability issue. If they are unwilling or deliberately neglectful, it is a conduct issue requiring a disciplinary procedure rather than a capability or performance management procedure.
Yes. Both conduct and capability issues can ultimately lead to a fair dismissal if informal and formal procedures fail to resolve the problem. However, you must follow the correct formal procedure for each – a disciplinary procedure for conduct issues and a capability or performance management procedure for capability issues.
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