Discipline and Grievanceby Kate Russell
Capability and conduct
It is important that any dismissal proceedings, and all the disciplinary penalties to that point, distinguish clearly between breaches of performance standards and conduct issues.
Capability and conduct should be treated separately. You need to recognise the difference between warning someone for a capability matter and warning him for his conduct. If you fail to distinguish between the two, you are much more likely to run the risk of a successful unfair dismissal application. Some organisations have separate disciplinary procedures for dealing with capability and conduct, but this is a matter of choice for the individual organisation.
This means that where your employee already has a warning for misconduct, and then demonstrates a lack of capability, you should issue him with a first warning for the capability matter, quite separate from the misconduct.
Dismissal on grounds of capability will be for one of three reasons:
- Lack of or loss of an essential qualification to do the job
- Lack of ability or skill – this can be repeated minor incompetence or one serious act of incompetence (poor performance)
- Lack of capability because of ill health.
If an employee loses or fails to achieve a qualification necessary to do his job, he may be dismissed on grounds of capability. However, this is not automatically fair and you should not dismiss until you have explored all the alternative ways of trying to accommodate him. So, for example, if a sales representative whose job it is to travel to clients or prospects loses his driver’s licence for a year, you should consider the options. Can he work from home or from the office? Can his work be adjusted so that he travels by public transport? Can he have a driver? Can he do another job in the business while his licence is withheld?
Poor work performance
Under-performance is one the most frequent reasons for discipline and one of the least well handled. It’s your job to show that poor performance is the reason for the dismissal and that you reasonably believe your employee is not capable of working to the standard you require. It would not be fair to dismiss for a first breach if the incompetence is minor. It has to be really serious: for example, a life-threatening action or omission.
You must help the employee by doing everything reasonable to help him meet the required standard of performance. This normally takes the form of coaching, re-training, giving a reasonable amount of time to improve (two months rather than two weeks) and generally supporting the employee. You must warn the employee before dismissal of the consequences of failure to improve.
In deciding whether an employer was reasonable in dismissing for incompetence, it may be relevant to know whether appropriate training was given.
Below is an example of minor incompetence.
A woman was dismissed for assembling 471 out of 500 components incorrectly. She claimed this was the way she had been shown how to assemble them. The charge hand denied ever having shown her how to do it. Either way the employer was damned, for either she had been wrongly trained or not trained at all.
“I haven’t been trained” is a very common justification for poor performance and its frequently assumed that training or lack of it will fix the problem. However, don’t make that assumption. Instead, carefully assess of the real reason the employee is not performing. If it turns out the be a cause other than a lack of training you’ll just be wasting time and money if you then train and (almost certainly) the problem will not be solved.
In the following example of a competence matter, it was found to be fair to dismiss in the first instance.
T was a pilot who crash-landed a passenger plane in good flying conditions. Nobody was hurt, but the plane was badly damaged. After a full investigation and disciplinary hearing, T was dismissed for gross incompetence. He complained that as he had an unblemished record he should not have been dismissed for a first offence.
The Court of Appeal upheld the decision to dismiss, saying that in some professions the degree of skill needed was so high and the likely consequences of deviation from that level of skill potentially so serious that it would be fair to dismiss in a first instance.
Some companies have a capability poor performance procedure which is distinct from the disciplinary procedure covering conduct. If so, you should follow that.
It is fair to dismiss an employee who is no longer capable of working because he is too unwell to do so. If your staff receive organisational sick pay as a contractual benefit, the dismissal should not become effective until the sick pay is exhausted or paid in lieu. In cases of long-term ill health, you should concentrate on investigating the medical facts and consulting with the affected employee about the available options. In these circumstances, it is not appropriate to go through any lengthy disciplinary procedure or give warnings though you must follow a procedure which will involve writing to set up a formal meeting, giving the right to be accompanied and if you terminate employment on grounds of ill health, giving a right of appeal.
The Equality Act 2010 places an obligation upon employers to consider alternatives to dismissal where the ill health is caused through an illness which is defined as a disability. If the employee may be disabled within the definition of the act, there is a requirement to consider making reasonable adjustments to the work or the workplace to enable the employee to remain in work. You are expected to get an up-to-date medical report before taking the decision to terminate employment. If an employee is not able to work and the medical prognosis is that he won’t be able to work in the foreseeable future there are no reasonable adjustments that you can make. If the employee can work with adjustments or is likely to come back to work soon with adjustments you are expected to implement them if they are reasonable. What is reasonable will depend on the circumstances size of company, nature of ill health, cost of adjustment etc.
A person may be disabled if he has a physical or mental impairment which is substantial and exercises a long-term adverse effect on his ability to carry out normal day-to-day activities.
You must consider all the other options apart from dismissal. It may be possible to find an alternative job or change the job content to accommodate the employee’s changed requirements.
As an employer, you have to be seen to be considering all the options properly and going through a fair procedure. If you don’t, you may end up with an unfair dismissal claim, even if the end result would have been the same anyway, fair procedure or no fair procedure.
Dismissal for a reason relating to the conduct of an employee will be fair, provided the procedure is properly followed. Examples of misconduct:
- Poor timekeeping
- Poor attendance
Gross misconduct is a very serious breach of conduct by the employee. It may be an act or an omission, but it is tantamount to a fundamental breach of contract by the employee. Examples of gross misconduct:
- Fighting, abusive or intimidating behaviour
- Consumption of alcohol while on duty
Your procedure must list the offences you consider to be gross misconduct in your organisation.