5 common

mistakes to

avoid during

capability

procedure Emma Webster,

Employment Solicitor,

Yesslaw

Lawyers supporting employees to resolve disputes without litigating

5 common mistakes to avoid during

capability procedure

Introduction

This is a brief taster of some of the topics I discuss on the legal

awareness day and capability conference.

My tips are based on common experiences – they are not

legal advice. If you have a specific problem then seek

independent legal advice.

Lawyers supporting employees to resolve disputes without litigating

Problems, whether they be behavioural or performance

related, do not simply go away over time. If left they will end

up being a drain on resources and time.

Do not bury your head in the sand and pretend it will get

better. It probably won’t unless you raise it and deal with it.

An employee may not understand that they are doing

something wrong. Even if they do they may not understand

how to put it right.

Talk to an employee early on when problems start to arise.

If you raise it early you both (you and the employee) stand a

chance of correcting it.

Mistake 1:

Not talking to an employee soon enough

Lawyers supporting employees to resolve disputes without litigating

Mistake 2:

Confusing misconduct with capability

If you try to deal with a problem under the wrong “heading”

you are likely to use the wrong procedure and approach it

from the wrong perspective.

A common mistake is to treat an employee who refuses to

follow a reasonable management request as performing badly

when actually their bad behaviour is a conduct issue.

Identify to yourself what it is the employee is doing “wrong”:

Are you dealing with poor performance (failure to meet

targets) or are you dealing with misconduct (refusing to do

what a line manager has asked).

Think about what your concerns are about the employee and

make sure you are dealing with it under the correct “heading”.

Lawyers supporting employees to resolve disputes without litigating

People often fail to identify what the problem is from the

outset.

Failure to do this makes it hard to implement any

improvement.

Identify to yourself what has the employee actually

done “wrong”?

If you cannot write it down the likelihood is that you

haven’t properly identified it and will not be able to

explain it properly to the employee.

Before you either write to the employee or have a

meeting with them sit down and write a list of bullet

points of what they have done “wrong”.

Mistake 3:

Being vague about the problem

Lawyers supporting employees to resolve disputes without litigating

If you do not identify what needs to be done to improve

then the employee stands no chance of improving but you

will also struggle to explain why they have failed to improve

if performance continues to be poor.

Identify to yourself what can the employee do to put it right?

If you cannot identify what steps are needed by the

employee then how will they get better and how will they

evidence their improvement to you?

Write a suggested list of objectives before your meeting.

At the meeting try and agree that list with the employee

and a clear time frame for those aims.

Then you will both have a clear framework to work within.

Mistake 4:

Not being clear about how to improve

Lawyers supporting employees to resolve disputes without litigating

Failing to identify why change is needed often leads to

resentment and a failure to improve.

An employee will want to understand why you’re

performance managing them. Otherwise they may feel

picked on or singled out.

Be clear as to why you need them to change.

If they can understand the impact their behaviour or

poor performance is having on you or the team or the

children, then they will have a reason to improve and a

context within which they can understand the

objectives you have sent.

Mistake 5:

Not knowing or sharing why the

change is needed

Lawyers supporting employees to resolve disputes without litigating

Top Tips

1. It sounds obvious, but when you are considering how

to tackle someone’s underperformance, put yourself

in their shoes. How would you like to be treated in

similar circumstances? Be fair.

2. Set realistic targets and deadlines for any required

improvement.

3. Support your employee as best you can. This will either

result in performance improvement, or it will clearly

demonstrate that they cannot do their job. If you do

not offer support, neither of these things will be

possible.