What if they don’t improve?

Low performance is among the most common workplace issues, and perhaps one of the hardest to manage. Gary Cookson shares advice and guidance on how to handle what is known in legal and HR terms as 'capability issues' with more confidence.

Capability is defined in the Employment Rights Act as “skill, aptitude, health or other physical or mental quality” – and therefore capability issues arise when an individual is unable to carry out their job to your required standards because of any or all of those reasons.

How that presents itself in terms of their behaviour will differ – some issues will be easier to spot than others – but it’s important to distinguish capability issues which are about behaviour the individual may have no choice over (examples may include being slow, a lack of quality, being inflexible or unadaptable) from conduct issues which are more about behaviour the individual has some element of choice over (examples may include carelessness, idleness, negligence and intransigence).  Both capability and conduct can be fair reasons for dismissal, and often are, but you must know at the outset which route you are going down as the legal burdens are slightly different.

Capability is one of the five potentially fair reasons for dismissal, and when you’re taking someone down a route that could end up with dismissal (whether that’s for health or performance reasons) then its important to start with the end in mind and work backward from there, even if you reach a different outcome and the employee’s health or performance improves and they stay with the business.

Here’s my top tips, irrespective of what outcome you reach.

1. Diagnose properly

I can’t stress enough how important this is. Your initial view of what’s causing the capability issue may not be the right one, and you need to talk to the individual concerned and gather all the available evidence. What looks like a performance issue may turn out to be a health issue, and vice versa, or something else entirely. Do a thorough and proper diagnosis to make it clear.

2. Set standards before it’s too late

Do you know the required standards in this role? Have you communicated these to all concerned well before you begin to identify any capability issues? If you haven’t, is it too late to do so when you start capability procedures?

3. Communicate the gap

How can someone improve if they don’t know what the standards are and how far they are from them? Ensure you’ve shared this both informally AND formally if it gets that far. Make this explicit so that there is no uncertainty about the nature of the situation.

4. Help them

The aim of any formal process is to get someone back up to the required standard, not necessarily to get them out of the business. If you do get as far as dismissal, it won’t be a fair one unless you can show you’ve given the employee all reasonable support to meet the requirements. Whatever you can do – do it.  If they later fall short of requirements despite opportunities to improve and you do end up dismissing them, make sure it is not because you didn’t try to help them.

5. Build your audit trail

Whatever point you get to, ensure that each step has been fully documented showing the evidence of the capability issue and the efforts made by all parties to resolve it.

6. Make dismissal a last resort

If there is sufficient evidence to sustain a belief that the capability gap will continue to exist despite efforts, what alternatives are there to dismissal? Explore any and all of these – don’t force alternative roles on the employee, but make it clear that there is an alternative to dismissal – some employees may welcome this but others’ won’t, and let them choose at this point.

7. Have grown-up conversations

Dealing with a capability issue takes time and effort from all parties and can be awkward and embarrassing too, particularly for the employee. Plus, it might not work. If you strongly suspect that it might not work, consider having a “Protected Conversation” with the employee that explains this and makes them an offer to leave the business instead of dealing with what could be a protracted, stressful and ultimately pointless process. They may not want to but its worth approaching these things in an adult manner.

Hope this helps, and good luck!

Author: Gary Cookson (a father of four, husband and CIPD Chartered Fellow) runs his own business called EPIC, which helps people and places to Evolve, Perform, Improve and Compete.


Explore related resources

These areas of the People Skills Hub will help you to address some of the issues covered in this blog:

  • Performance management: learn how to improve and develop your employees' performance and how to align their goals with your business objectives
  • Capability issues: discover how to effectively manage a capability process to help improve an employee's poor performance
  • Learning and development: find out how to plan learning and development opportunities to improve your employees' capabilities, skills and competencies
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