Leadership · 30 May 2022

What is Capability Procedure in Employment Law?

According to the Employment Rights Act of 1996, an employee’s capability can be defined by their level of skill, aptitude, overall health, or any other mental or physical quality they possess. If an employee is unable to perform the duties associated with their position, the employer has the right to terminate their employment.

There will be occasions in which an employee will fail to meet the expectations that you have established for them. Before taking any action, it is essential to conduct a comprehensive investigation into the situation because the occurrence could have been caused by a variety of factors.

It would be to the disadvantage of your company to fire somebody haphazardly, so investigations are often a useful way to proceed before coming to a decision like that.

But at the other hand, it is possible that at some point in time your involvement will be required and this could happen at any time.

According to the laws governing employment, the two fundamental totally justifiable grounds for dismissal which are outlined are conduct and incapability.

This section will concentrate on capability, which is defined as the capacity of an employee to successfully carry out the responsibilities that are affiliated with their job. We have outlined the process that you are required to follow so that you do not run the risk of being accused of firing an employee in an unethical way.

What exactly is meant by the term capability procedure?

To distinguish themselves from issues relating to an employee’s behaviour, issues of capability focus on an employee’s capacity to carry out the responsibilities that are associated with their role. Therefore, in the event that this matter develops into an official concern at work, the method for handling it will be a procedure known as capability.

A written capability policy and procedure should be in place so that employees are aware of and able to comprehend the required levels of work and attendance in the workplace. This will ensure that employees are able to meet their obligations. This should be included in the employee handbook, which will also provide specific examples of what is expected of employees.

As opposed to behaviour, a lack of capability refers to a lack of, for instance, skills or aptitude. Conduct refers to how one behaves. Intentional rule breaking is what we mean when we talk about conduct. It may be a cause for concern if an employee puts in a lot of effort to perform well but falls short of meeting their objectives despite their best efforts. Employment will be terminated in situations where there is an insufficient pool of qualified candidates.

Why is a capability procedure necessary for me?

One of the potentially justifiable grounds for firing an employee is their lack of capability. It is less likely that a dismissal you make for capability reasons will be considered unfair by an employment tribunal if you use a formal capability procedure.

Procedures pertaining to capability as well as disciplinary action should be included in an adequate set of employer policies. In most cases, the procedure for dismissing a candidate’s capabilities will comprise a number of components, including informal and informal processes.

When an employer is dealing with issues surrounding poor performance or incapability because of illness, there are several related issues that could lead to claims being filed with an employment tribunal. (such as discrimination based on a person’s disability) or which could lead to other procedures relating to disciplinary action or termination of employment.

As a consequence of this, it is absolutely necessary for you to have a procedure that is both transparent and objective, as well as an understanding of how to handle issues that are related to capability.

Capability procedures in employment law, when used properly, have the potential to be an effective method for managing employee performance and preventing dismissal decisions before even addressing any underlying factors and giving employees the chance to improve. Using these procedures correctly can also help stop you from paying employees much more than they are owed.

In what way should the procedure be carried out?

The procedure ought to make it possible for you to contemplate the means by which you can assist your employee in improving their performance and collaborate with them to make certain that the employee’s performance improves to an acceptable level.

The following are some of the steps that are recommended to be taken:

  • Give some thought to an informal resolution.
  • The results of the investigation.
  • An invitation to participate in a business meeting.
  • The meeting to discuss our capabilities.
  • Warnings.
  • Additional evaluations of performance.
  • Making a decision regarding what will take place in the event that your performance does not improve.
  • Dismissal.
  • Appeal.
If an employee is not performing up to the required standards at work, the employer should first consider holding an open meeting with that employee to address the situation in the hope that the employee will improve their situation on their own volition. If the meeting does not improve the employee’s performance, the employer should then consider taking additional disciplinary action against the employee.

If, following the completion of a capability review procedure, the employer notices that the employee’s performance has not improved, the employer may choose to initiate a formal capability procedure.

They need to begin by conducting an investigation into the employee’s performance and collecting evidence that demonstrates the areas in which they are deficient. This could include evidence of poorly executed work or complaints from customers, but it could also vary depending on the role that they play in the company.

After that, you will need to conduct an official hearing, to which the employee will have to be formally invited using a capability procedure template letter.

The subsequent steps ought to adhere to the capability policy and procedure established by the employer.

After the meeting, you may come to the conclusion that an official warning is necessary. In this warning, you would inform the employee that additional formal action would be taken if their performance did not improve.

You and the employee need to come to an agreement on how best to assist the employee, which may involve additional training or supervision.

A procedure for determining employment capability will lay out increasing sanctions in the event of continued poor performance, which will ultimately result in termination of employment. However, an employment tribunal will anticipate that the employer has made every effort possible to improve the employee’s performance but will assume that the employer has failed to do so. If this is not done, there is a possibility that the employee will be terminated unfairly, despite the fact that there may be legitimate concerns about the employee’s ability.

Different kinds of capabilities and procedures

An ill-health capability procedure, also referred to as a medical capability procedure, is one of the many kinds of capability procedures that are used in the workplace, and their specific names vary depending on the circumstances.

If the individual is struggling with their health in any way, shape, or form, you cannot follow the performance process with them because it will not be fair.

Unsatisfactory performance

You need to make sure that the problem isn’t just a lack of effort on your part first. It’s possible, for instance, that the worker doesn’t like their job and therefore puts in very little effort.

In the event that there is not a lack of application, but rather a lack of ability, this is the point at which the procedure for poor performance capability begins. The following items should be communicated to the employee in writing:

  • The specific reasons why their work does not meet the requirements that have been set.
  • The expected level of performance (s).
  • A timetable for the anticipated improvement, along with an explanation that the employer will evaluate them at that point in time.
  • The assistance, guidance, and/or training that will be provided to the worker in some capacity.



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