Capability vs Disciplinary: Understanding the Differences

 What is the difference between Capability and Disciplinary?

The main difference:

• Disciplinary deals with an employee's conduct - won’t do
• Capability deals with the employee’s ability to carry out the role – can’t do.

If an employee is on long term sick you would deal with any potential dismissal under capability and not disciplinary.

Investigation and Capability Proceedings

Managers should consider whether there are any exceptional circumstances e.g. it’s a new job, insufficient training has been given, or serious domestic problems before starting the capability procedure.

Once the decision is made to deal with the issue under the capability procedure, instead of disciplinary action, a hearing should be held. The hearing should be conducted by the employee’s line manager, whenever possible.

The Capability Hearing

• The employee must be made aware of the complaint, and that the hearing is being convened under this procedure.
• Advise the employee of the time, date and place and of the right to be accompanied by a colleague or trade union representative.
• The manager conducting the hearing will explain the employee of the purpose of the hearing. The employee will be given a chance to respond. The manager will review all available evidence, including any mitigating circumstances, before deciding what action is likely.
• If the manager conducting the hearing is satisfied that the employee’s work is to a satisfactory standard and that no further action will be taken, the employee should be informed in writing. Or if the work is not to a satisfactory standard action will be taken under one of the capability stages.

Action under one of the capability stages normally follows one or more of the following:

• Timescale for improvement.
• Provide suitable training, guidance and feedback.
• Set task(s) for the employee to complete.
• Following the expiry of any period during which improvement is required the employee will be informed that:

Either: Performance has shown satisfactory improvement during this period.

Or: Performance has not shown satisfactory improvement and further action will be taken.

• If the manager conducting the hearing is satisfied that the employee’s work is showing an improvement or is at a satisfactory standard then either no further action will be taken or extra time may be provided to achieve the expected standard.
• The manager conducting the hearing must keep a full written record of the hearing and the decision. The employee must be provided with written confirmation of the decision as soon as possible.
• An employee receiving a final written warning should be warned that failure to achieve the desired improvement in performance by the end of the stated time period will result in dismissal.
• If the employee is to be dismissed the letter must state the reason for dismissal. We always recommend having a separate capability policy.

Not sure about a situation you are dealing with?  Reach out for a chat and we can advise on what your options are and what steps you need to take.