As a rule, employers should treat capability and conduct as two separate issues. That means managers need to differentiate between dismissals for performance and conduct.
CAN'T & WON'T: How can employers recognise the difference between employee conduct and performance?
Warning someone for a capability matter means they are unable 'cannot' perform a task. Whereas, a warning for misconduct means they 'will not' do their tasks properly.
Failing to separate the two increases the risk of a claim for unfair dismissal.
That is why most organisations will choose to separate their disciplinary procedures. It makes it easier to deal with capability or conduct grounds for dismissal.
This creates an extra task where an employee already has a warning for misconduct. What if they show a lack of capability as well? It means issuing separate warnings for the capability matter and the misconduct issue.
Common reasons for dismissing an employee include:
It is worth noting, there is no specific process of law for dismissing an employee. But, you must be reasonable and fair to avoid future repercussions.
Capability issues often get linked to an employee's health. In this case you should try to help them perform their job before you dismiss them.
Acas recommend including examples of misconduct in your company disciplinary rules. But, different procedures for taking disciplinary action will get individualised for different circumstances.
Note: Employees can take someone with them to all disciplinary meetings and appeals. Employers should keep notes of all meetings and provide copies to their employee.
Typical employee misconduct cases would include unauthorised absence from work or persistent lateness.
In these instances there are 3 basic steps to follow to ensure the dismissal is fair. Assuming your employee has not committed 'gross' or 'serious' misconduct you should:
There may be situations where employee misconduct or under-performance is more serious. Typical cases of 'serious misconduct' include those which cause damage to the organisation.
In this case employers can choose to issue a onetime 'first and final' written warning. This is the time to explain that failing to improve could result in a dismissal.
As a rule, gross misconduct includes physical violence, theft, or gross negligence. You could add 'insubordination' (refusing to obey orders) to employee gross misconduct as well.
Employers can dismiss an employee immediately for gross misconduct. That is providing they follow fair dismissal procedures. Part of that process involves investigating the incident. That means giving the employee an opportunity to respond before dismissing them.
Most employers deal with a one-off incident using an informal discussion. As a rule it is enough action to solve a workplace dispute. This is especially so when the employee shows a good disciplinary record.
Unfortunately, there are times when employees have to stop working because of a disability or long-term illness. In some cases they may choose to hand in their resignation from work. But, in other cases, employers must consider whether to dismiss them.
Consider these points before dismissing an employee due to an illness or disability. Dismissal should be a last resort. There may be other methods to help you get the employee back to work, such as:
There may be times when an employee is unable to perform their job. That may happen if they become serious ill or disabled. In this case, dismissing them may be fair if you are unable to make reasonable adjustments.
Capability or Performance Grounds for Staff Dismissal in the United Kingdom