The Employment Rights Act 1996 sets out the various fair reasons for dismissal. One of them is capability, or more precisely, a lack of capability. Poor performance and a lack of capability are referred to variously as ‘poor work performance’, ‘capability’, ‘competence’ or ‘incompetence’, depending on the context.
Capability refers to an employee's ability to do his job and is potentially one of the fair reasons for dismissal. Poor work performance is a far more common complaint than misconduct. A lack of capability exists where the employee is unable to carry out the job to the standard required by the employer, even if he is genuinely trying to do so. It is the company’s standard that is relevant, and not the manager's personal opinion of the employee.
If an employee fails to come up to the required standard as a result of his carelessness, negligence or idleness, this will not constitute lack of capability, but misconduct.
Sometimes a lack of capability will be outside the employee's direct control. For example, it would be unrealistic to blame an employee for poor work performance where the root cause of the problem is that adequate training has not been provided; that would be a capability matter. Generally, an employee will have control over his conduct at work. If an employee fails to make the necessary effort to do his job, that’s a conduct matter.
It can sometimes be difficult to determine whether an employee's poor performance is due to inherent incapability or whether it is laziness, negligence or a lack of effort. In some cases, there may be an element of all of these factors. In the first instance, give the employee the benefit of the doubt and performance manage the employee informally.
Unfortunately, where there is a problem it doesn’t usually go away by itself.
The courts seem to think that all a manager has to do to address poor work performance is to have a little chat and the worker will instantly show concern, promise to work hard and all will be sweetness and light. It may happen like that sometimes, but in my experience all too often an employee who is performing poorly gets distinctly shirty when you try to discuss it with him and mutters darkly of bullying and harassment. In one case I have been dealing with recently a sales representative who has only hit target eight times in the last 28 months and is 30% down on her sales targets for the year has been taken through stage one of the performance management process. She appears to be astonished by what she considers to be the company’s unreasonableness and has raised a lengthy grievance pointing out our dishonesty and our bullying ways.
This type of thing makes an already stressful situation much worse and many managers hesitate to start the process of managing poor work performance because they fear they will face a grievance as a response. Because of that (or the anticipation of it) it’s common for managers to let the whole thing go hang; if you’re managing a team, you can’t afford to ignore poor work performance, even if you think that you’ll be accused of bullying and harassment.
Adopt the Mahatma Gandhi approach (hate the sin, love the sinner) and focus on the facts. This is not about whether we like the employee or not, it’s about whether he can do the job. It will help if you provide clear evidence of poor work performance to support your point. If you’re accused of bullying, ask why the employee thinks he is being bullied. A useful phrase is: “Help me understand why you think I’m treating you less favourably than anyone else who performs at this level?” Wait politely for the answer and don’t let the employee off the hook. This can help to disperse unwarranted accusations and helps the employee understand that you mean business.
You really shouldn’t accept poor work performance. Importantly, you don’t have to.
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Although every effort has been made to ensure the accuracy of the information contained in this blog, nothing herein should be construed as giving advice and no responsibility will be taken for inaccuracies or errors.
Copyright © 2018 all rights reserved. You may copy or distribute this blog as long as this copyright notice and full information about contacting the author are attached. The author is Kate Russell of Russell HR Consulting Ltd.
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