CAN’T & WON’T: This is the accepted way for employers to recognise the difference between conduct and capability.
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:
- They are incapable of carrying out their work to the required standard.
- They are capable of doing their job, but unwilling to do it properly.
- They commit an example of misconduct in the workplace.
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.
Employee Misconduct and Disciplinary Procedure
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:
- Arrange to have a meeting with the employee and inform them of the reason for the discussion. During the meeting, give them an opportunity to explain their conduct or behaviour. If you are not satisfied with their explanation you can issue a first written warning. The warning should inform them how you expect their conduct or performance to improve and over what period. Make them aware that you issue a final warning if they fail to improve enough.
- Hold a second meeting if the deadline passes and their performance or behaviour has not improved enough. After giving them a chance to explain you can then issue a final written warning. This is the time to revise the action plan and set new timescales for improvement. Make them aware that you will consider their dismissal if there is still no improvement.
- What if their performance or behaviour fails to meet the standard by the new deadlines? You must warn them that dismissal is now a possible course of action. You may set up a third meeting or they may start an appeal. But you must then decide whether to dismiss your employee or offer them another chance to improve. Either way, you must inform your employee of your final decision.
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.
Employee Dismissals Due to Injury or Illness
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:
- Obtain a medical report from the employee’s GP. But, you need their permission and they have the right to read the report before their employer does.
- Arrange for an occupational health assessment.
- Determine whether they meet the definition of a disabled person or not. Try to make reasonable adjustments to help them perform their job.
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.