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Choosing the correct procedure to address your employee’s disciplinary or capability issues is crucial. After all, the correct procedure will help you deal with the problems correctly. However, not following the correct and fair procedure when dealing with either a disciplinary or capability issue can lead to an employment claim in an employment tribunal. Hence, this article will explain to you, as an employer, the key differences between disciplinary and capability procedures in England.
What is a Disciplinary Procedure?
Disciplinary procedures provide employers with a formal response to addressing workplace misconduct. Misconduct is when your employee breaks workplace rules, such as by:
- bullying;
- harassing;
- not caring about their work, and
- being absent from work without permission.
A disciplinary procedure should be fair and focus on thoroughly investigating the alleged misconduct step-by-step. This procedure should include:
- collecting evidence from all sides of the issue;
- holding a disciplinary meeting or investigation with the employee concerned; and
- making decisions on the disciplinary outcome approach, which could be a warning followed by dismissal.
You should note that where misconduct is gross misconduct, you may dismiss your employee immediately without notice.
What is a Capability Procedure?
A capability or performance issue is usually where your employee cannot control their ability to perform correctly or to the standard required on their job at work. If you have a capability procedure in place in your business, you should use the capability procedure instead of your disciplinary procedure. Alternatively, you may have a performance management procedure in place.
A capability procedure should still be fair. Hence, it should start with an investigation so that you are clear on the issues and what steps you may take. A capability procedure focuses on:
- supporting your employee to improve their performance;
- training your employee to reach the level required for the job; and
- encouraging them to improve their performance.
A capability procedure typically includes:
- holding a performance review hearing or management meeting;
- creating a performance improvement plan where there is no good reason for unsatisfactory performance;
- investigating further and potentially holding another meeting if performance does not improve; and
- considering dismissal and, where appropriate, issuing warnings first.
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Differences Between the Disciplinary and Capability Procedures
While they may seem similar, disciplinary and capability procedures are different in practice.
| Disciplinary Procedure | Capability Procedure |
| You may use disciplinary procedures for conduct issues, poor performance, or a combination of the two. | You may use capability procedures for capability and poor performance issues only. |
| Disciplinary procedures focus on a fair and thorough investigation, resulting in a decision and outcome. | Although the focus of capability procedures is on a fair and thorough investigation, it also focuses on supporting, encouraging and training your employee. |
| Disciplinary procedures do not always require warnings and notice for dismissal, such as where gross misconduct is concerned. | Capability procedures usually require warnings and notice before dismissal. |
| You can use disciplinary procedures to address misconduct outside the workplace. | You cannot use capability procedures for capability or performance issues outside the workplace. |
Key Takeaways
When you face a disciplinary problem with an employee or a performance or capability issue, you must carry out a fair procedure to resolve the issue. This could be your disciplinary procedure or your capability procedure. While both procedures have many similarities, there are some differences between each procedure. For example, you can use the disciplinary procedure for the conduct and disciplinary issues. However, you can only use the capability procedure for performance issues. Also, you may use your disciplinary procedure for conduct outside of the workplace. However, you may not use your capability procedures for issues outside the workplace.
If you need help understanding the difference between the disciplinary and 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.
Frequently Asked Questions
The disciplinary procedure is a fair procedure you use to address a conduct issue. However, you can also use it to deal with capability and poor performance issues.
The capability procedure is a series of steps you take as an employer to deal with a capability or poor performance issue.
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