Employers will often find themselves faced with the unenviable task of dealing with a misbehaving underperforming employee. At Avensure, the majority of the calls we receive to our advice line are related to poor employee conduct and performance issues at work.
In this article, we explore five scenarios and ask, are we dealing with conduct or capability?
‘Can’t do’ vs. ‘Won’t do’.
When weighing up whether you are faced with a conduct issue or one of capability at work, consider whether this is someone who can do the job but isn’t doing what they should be or if this is someone who is showing diligence and motivation but is simply not performing at the standard required.
Can’t do = Capability
Won’t do = Conduct
A disciplinary procedure aims to correct an underperforming employee due to misconduct, such as rule-breaking, through disciplinary sanctions, such as formal warnings. Capability proceedings can also use formal warnings together with performance improvement plans, with the aim being to manage the employee up to the standard required or to manage them out of the business if those standards cannot be met.
Case 1: Steve’s Back Pain
Steve works in a warehouse and has 12 years of good service. However, he is refusing to assist with the unloading of deliveries because of back pain.
Steve has recently had some time off due to his bad back. His specialist has advised him that his condition is long-term and exacerbated by heavy lifting. Steve is waiting for an operation.
The situation is causing disgruntlement amongst the rest of the staff, who feel he is not doing his fair share, and tempers are becoming a bit frayed due to his perceived poor conduct at work. You have the option of looking at lighter duties for him, but you’re concerned that other staff will see this as favouritism.
Employee conduct or capability?
Answer: Capability.
Why?
The reason Steve is not carrying out the full spectrum of his role is not due to poor conduct at work; it is due to a medical reason. Steve has always been capable of carrying out his role, but his medical diagnosis is directly impacting his abilities and capability at work.
Steve’s condition is likely to meet the definition of a disability under the Equality Act, namely a ‘physical or mental impairment that has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities’.
The Equality Act places upon the employer the legal requirement to make reasonable adjustments, which can include lighter duties, amended hours, or even alternative employment where possible. If the employer took disciplinary action, not only could this be discriminatory, but it would serve no purpose because no amount of disciplinary warnings will correct a medical problem.
The employer should be guided by their duty of care to Steve, and if they can make adjustments to support him to remain at work, then they ought to do so. They could also look at getting some guidance from occupational health or (with consent) seek a medical report from Steve’s specialist or GP. This is known as the medical capability procedure.
In this case, it is likely Steve’s employer will be able to accommodate him, but in the event they could not, the employer may have been left with no option other than to dismiss him due to him no longer being medically capable of performing the role.
Case 2: Emma’s Struggles
Emma commenced her employment as a marketing executive three months ago and is in a 6-month probationary period. Emma’s previous experience was with a much smaller organisation, and despite her having impressed on her interview and fitting in well with the team, she is having performance issues at work and just isn’t up to the job.
Emma has had all the necessary induction and training, along with additional mentoring, and often stays late to complete tasks. Despite this, errors are increasing and crucial deadlines are being missed.
Employee capability or conduct?
Answer: Capability.
Why?
If the mistakes were due to Emma being careless, failing to follow instructions, or disregarding procedure, this could be a conduct issue. However, what we are dealing with here is a form of employee capability, or more specifically, suitability.
The aim of a probationary period is to assess if someone is suitable for the job and the right fit for your business. In this case, Emma excelled when working for a smaller organisation; her employment reference was glowing, so she is capable, but she is not suitable for this type of role in this size of organisation.
To address this, a probation review could be carried out, with the employer having the option to extend the probation period to allow Emma more time to improve her performance issues at work or terminate her employment by failing Emma’s probation.
This may also be an opportunity for the employer to assess if their recruitment practices are up to scratch. Most employers will find themselves in a situation where they employ the wrong person from time to time, but if this is consistently happening, there is something going wrong at the recruitment stage. Perhaps you need to look at how you source your candidates or whether your interview practices need to be revised.
Case 3: Carlos’s Care Error
Carlos is a senior carer working with vulnerable adults and has had six years of service. Carlos is also responsible for staff training on moving and handling. He has caused a minor injury to one of your service users because he assisted them to the bathroom alone when this service user’s care plan requires the assistance of two members of staff when lifting them out of their wheelchairs.
Employee conduct or capability?
Answer: Conduct.
Why?
Carlos is a senior carer, and he trains other staff on the correct methods of moving and handling. This indicates that Carlos is trained to do the job and has gone against the service user’s care plan. In short, Carlos knew what he should be doing but didn’t do it.
This is poor conduct at work as we have a procedural breach in respect of moving and handling that has caused injury to a service user.
A breach of clear and established rules, procedures, or instructions is an allegation of misconduct and is addressed via a company disciplinary procedure. In this instance, the allegations may amount to gross misconduct or gross negligence.
Case 4: Imran’s Absence
Imran has been employed for 5 years as an HR administrator. Imran has a long-term health condition that occasionally causes him to be absent from work.
Yesterday, Imran was absent from work and did not ring in to report his absence in line with the company absence reporting procedure, which is unusual for him. Instead, he sent a text message five hours after his start time to say he was ill. He lives in a house shared with three other people.
On his return to work, a return-to-work meeting was conducted. Imran confirmed he was unwell due to his medical condition and said he didn’t ring in because his phone was playing up.
Employee capability or conduct?
Answer: Conduct.
Why?
This is a conduct issue, as Imran is fully aware of the correct procedure for reporting absences from work. He has demonstrated that he knows the correct procedure because he has followed it previously, and he also works in HR!
It is likely that the reason for his absence was genuine, and had he been unable to ring in, perhaps due to a hospital admission, then this would explain why the procedure had not been followed.
Instead, he has failed to follow procedure and has not made sufficient attempts to ensure he reported his absence properly.
Despite there being an underlying medical issue, it is the failure to follow the correct procedure that makes this matter an employee conduct issue.
Case 5: Suki’s Struggle with Targets
Suki is in a sales position and has very clear targets and KPIs to adhere to. Suki has always performed well throughout her 7 years of employment; however, following a recent change to monthly targets across the department, Suki has been consistently falling short and is considered an underperforming employee.
Her colleagues have been able to just about hit their targets because they are able to put in some extra overtime, but Suki has to leave on time because she is a carer for her father, who lives with her and has several disabilities.
Employee conduct or capability?
Answer: NEITHER!
Why?
Failing to hit targets is usually an issue capability at work. However, in this example, it seems that the revised targets imposed may not be realistic or reasonable. This is because while others are hitting them, they have to exceed their contractual hours to do so. While they may be happy to work additional hours for overtime pay, employers cannot insist employees work above their contractual hours.
If Suki were subject to formal action in this instance, she may be able to argue that she was being treated less favourably on the grounds of discrimination by association. This is because her caring responsibilities for a dependent person with a disability have not been taken into account by her employers when they changed her targets, which means that Suki is being subjected to a detriment in comparison with her colleagues who do not have a dependent with a disability.
And finally…know the difference.
it’s important that employers understand the difference between employee conduct and capability at work and use the correct procedure to address the problem. This is why an investigation is so important and why taking advice from Avensure at the earliest opportunity is crucial.
For support, please contact our employment team. Simply click here: Avensure Contact!
