What You Should and Should Not Do When Carrying Out the Capability Procedure in England

If your employees are experiencing performance issues, you likely need to carry out your capability procedure with your staff in the workplace. A capability procedure is a set of rules you consistently apply when employees are not performing to your expected standards. If you fail to follow the procedure, you could face an employment tribunal claim for unfair dismissal. This article will explain what you should and should not do when carrying out your business’ capability procedure in England.

Ensure Your Capability Procedure is Written and Clear

Carrying out the capability procedure can be complex and sensitive. Hence, your employees must know how the procedure will run. You can achieve this by having a clear and written workplace procedure. 

As an employer, it is your decision whether you incorporate your capability procedure as part of your disciplinary procedure or separate the two. You may find it makes more sense to separate the two procedures when an employee has a performance issue. For example, disciplining employees for misconduct will likely be related to their poor performance. 

Encourage Your Employees

Your capability procedure should encourage your employees to improve their performance in their job roles. This allows your employee to show that they can carry out the role. Consequently, you can prevent more problems from occurring. 

Encouraging your employee to improve is something you should do as part of your capability procedure. This is because encouraging improvement gives employees a further chance before they potentially have to take disciplinary action. If you face an employment tribunal, the tribunal expects you to have made reasonable attempts to help your employee improve.

Begin With an Informal Process

Generally speaking, there are various stages to a capability procedure. The first stage should involve an informal process. An informal process will allow you to address your initial concerns about your employees’ performance. Additionally, an informal process can include:

• using your annual appraisal system;
• engaging in one-to-one meetings; or
• informal discussions between you and your employee.

Ultimately, an informal process can allow you to:

• explain to your employee what is concerning you;
• be clear on what standards you expect;
• discuss what the reasons for the poor performance may be;
• devise what actions which may help your employee to improve; and 
• be clear about how you expect your employees to improve.

Do Not Use the Procedure to Bully or Harass

Your capability procedure is in place to help your employee improve where an issue affects their capability. This includes their:

• lack of skills;
• aptitude;
• mental issues; or
• physical issues.

When employees show a lack of ability in their job role, it is not typically their fault. Ultimately, employees are usually willing to carry you to the job well. For this reason, you should ensure that you do not use the procedure to bully or harass them but instead assist them.

Do Not Forget To Give Warnings Before Any Dismissal

You should not forget to give warnings before you dismiss your employee if dismissal is the result of the procedure. The whole point of the procedure is to help your employee improve and allow them to do so. If you fail to give them a warning, they have no time to improve their conduct. 

It is up to you how many warnings you will provide underperforming employees. However, Acas advises that you provide, in the following order, a:

• written warning;
• final written notification; and 
• dismissal with notice.

Key Takeaways

When carrying out a capability procedure with your staff, there are some things you should and should not do. Capability procedures give your employee the chance to improve. Therefore, one action you can take during the procedure is to provide them with training to support their improvement. Additionally, you should ensure that you do not fail to give adequate warnings before any dismissal.

If you need help understanding what you should and should not do when carrying out the capability procedure in England, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. So call us today on 0808 196 8584 or visit our membership page.

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