Understanding Capability and Conduct

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Having clear expectations of employee performance and managing these on a daily basis are critical success factors for every business.  A high performing business knows which employees are delivering and which are failing but addressing issues of underperformance is no easy task.

It can be difficult to establish if poor performance is due to inherent incapability or misconduct.

Capability refers to an employee’s skills, ability, aptitude and knowledge in relation to the job that he or she is employed to do.  The key feature of lack of capability is that it is not the employee’s fault. Very few employees choose to perform their work badly, make mistakes, fail to complete tasks or have poor relationships with colleagues or customers.

Misconduct refers to any behaviour that falls below that of the standard required by your business or behaviour which fundamentally breaches a contract of employment such as fraud, theft, damage of company property, harassment or bullying.  There is no legal definition of misconduct, it is very much dependant on the type of business you operate, the nature of work undertaken by your employees and the risks to your business.

A lack of capability exists where no matter how hard an employee tries, he or she is simply unable to perform the job to the standard required by the employer. If an employee fails to come up to the required standard as a result of his or her own carelessness, negligence or idleness, this will not constitute incapability, but could be regarded as misconduct.

One of the key distinctions between capability and conduct is that lack of capability will usually be outside the employee’s direct control, while the same employee obviously will have control over his or her conduct at work.

To find out more about managing capability and conduct issues and the ways in which these can be dealt with to ensure that employees are treated fairly and reasonably whilst preserving the interests of your business read the latest copy of our Working Together newsletter.

Preventative HR Seminar 14 June

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In today’s challenging business environment, your people are your biggest asset therefore it essential that you recruit and retain the right team.

In terms of recruitment diligence is vital in ensuring that you identify and appoint the best candidates from the high number of applicants you have for each role.  Recruiting the wrong person costs time and money whereas recruiting the right person will deliver an instant return on investment.

Once an employee is in place you must nurture their development, monitor their performance and output effectively and help them achieve their true potential in order to retain them for the long term.

When performance issues come into play it is important to take proactive action to quickly remedy the situation whilst balancing your responsibilities in terms of employee statutory rights.

Building a winning team is not as onerous as it sounds once you have the right procedures and policies in place.  Join us for our forthcoming free preventative HR seminar to find out the best ways to manage recruitment and induction, appraisals and performance feedback, managing poor performance, managing sickness, statutory rights and communication.

Taking place on 14th June at The Arab British Chamber of Commerce from 9.30-11.30 am this event is a must for all employers and managers who want to invest in their people and reap the business rewards that follow.

To reserve your place for this event please contact Sue Ferguson on 0118 940 3032 or email sueferguson@optionshr.co.uk.

 

 

Dealing with Disciplinary and Capability Issues

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It is a mistake to think that performance problems, whether they be capability or disciplinary in nature, will simply go away or sort themselves out.  

Issues such as sickness absence, poor attitudes/behavior, failure to meet objectives and poor general standards of work must be dealt with appropriately and effectively as soon as they occur. 

In most instances and informal chat may be enough to solve the problem but if not then you have laid the groundwork for the formal disciplinary process to begin. 

 What to consider when planning your approach:

  • Do you want to conduct an initial informal chat or start with a more formal meeting? Is the employee entitled to be accompanied by a representative at the meeting?
  • What is an appropriate review/warning period?
  • If dismissal is a possible end result, are there any alternative work options available to the employee?
  • What acts of poor performance are serious enough to instigate a dismissal procedure?
  • If the issue involves bad attitude/behaviour ? is this a capability or conduct issue? What are the differences in approach to handling these issues?
  • What are the legal requirements of a disciplinary procedure?  Informal and formal meetings, formal and informal warnings, right to respond, opportunities to improve etc. 

On Thursday 21st June we will be holding a workshop covering the practical aspects of carrying out a capability or disciplinary procedure.  We’ll look at what the differences are between capability and disciplinary and how you can handle them with confidence and success. 

The workshop will be held at the Hennerton Golf Club from 9.30am to 12.30pm.  Please contact Sue for further details or to book your place.

Sickness Absence

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Every employee will invariably be sick and unable to work from time to time.  But it is important to keep in contact to establish any support they need and when you can expect them to return to work. In extreme circumstances, or where you suspect the sickness my not be genuine, it may be necessary to terminate a contract of employment but you must follow a fair procedure first – do you have the correct processes in place?

Short Term Absence:

  • Discuss the problem with your employee as soon as possible and keep lines of communication open at all times
  • Monitor the absence and document the ‘calling in sick’ process.  Can the employee complete a self-certification notification or do you require a Dr’s letter?
  • Once your employee is fit to return to work, make sure you have all your ducks in a row and have conducted a thorough return to work interview
  • If necessary instigate a formal action process including warnings and dismissal, as a last resort
  • Learn from employee absence, conduct reviews and look for patterns that can help you to avoid absence in the future

Long Term Absence:

  • This is when a period of absence exceeds four weeks in duration.  In these instances an employee is required to provide medical support
  • Keep in regular contact and help to obtain medical advice that will assist in return to work
  • Avoid the risk of disability discrimination by taking your duty of care seriously and making all necessary adjustments
  • Manage return to work effectively, consider a phased return where necessary or take all the right steps to instigate dismissal on the grounds of ill health

Dismissal is always a last resort, factors that must be taken in to consideration before heading down this path include:

  • The nature and length of the illness
  • Length of service and previous record
  • Any improvement in attendance
  • The effect of absence on colleagues and the business as a whole
  • Whether there are other employment options available

Key steps to great recruitment

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Recruiting the right people and retaining them for the long term is the goal for every business, big or small, no matter what sector of industry you operate in.  If you recruit the wrong people you could pay the price not only in terms of business success but also in costly and often difficult employment disputes.  So ask yourself “How thorough is our recruitment process?”

Here are some key steps to great recruitment that can help:

  1. Preparation, Preparation, Preparation.  Conduct a job analysis to establish what roles you need to fill.  Put together a job description detailing exactly what each candidate needs to be able to do in conjunction with a person specification listing both essential and desirable attributes.  Finally, ensure you benchmark the salary for each role correctly, both in terms of the market and internally to ensure you attract the right calibre of individual.
  2. Attracting the Right Candidate.  There are many options available to you including advertising (internally and externally), word of mouth, web, agencies and head hunters, job centres, graduate programmes, review of previous applicants etc.  Ensure you are using the right method or combination of methods for each job and for the specification of candidate you wish to attract.
  3. CV vs Application form.  Both are great tools for ensuring you select the right candidates for interview but both only paint part of the picture.  A CV tells you what the individual wishes you to know, but an application form asks information you wish to know.  Use them in combination to get the most out of your early selection process.
  4. Selection Process.  Once you have narrowed down your candidates there are a number of further activities you can undertake to ensure you choose the right one, these include psychometric testing, and practical exercises to identify key skills sets and personality traits
  5. Legal Compliance.  Once you have selected the right person you must ensure you are meeting your legal requirements before any offer of a job can be made.  As a guide you must pay attention to discrimination, medical needs, references, eligibility to work in the UK and data protection
  6. Making the Offer.  You have ticked all the boxes, dotted the I’s and crossed the T’s and now you are in a position to make an offer.  Ensure that any offer in subject to satisfactory completion of the following:  reference, CRB checks, medical screening, right to work in UK confirmation and completion of a suitable probationary period.

Happy recruiting!!

Is your HR team proactive?

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Top tips to ensure proactive success:

  • Have in place well designed policies and procedures to cover all business needs and eventualities and ensure every part of your business is operating like a well-oiled machine.
  • Prepare comprehensive job descriptions for every employee and evaluate regularly.
  • Set objectives / targets to provide focus for all parties on what needs to be achieved both short and long term and give feedback regularly.
  • Give praise for work well done and deal with instances of poor performance before they become a major issue.
  • Keep up to date with the latest employment legislation? And, always ensure you are exercising your duty of care towards the welfare and development of your employees.
  • Communicate with your employees and keep them informed, engaged and focussed on your strategic goals. Also, take a bottom-up approach that allows employees to voice their concerns and ideas.
  • Provide opportunities for training and career progression wherever possible.

Employment Law Update

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A number of employment law changes that could impact your business came into force this month. Firstly, The Government has increased the rate of Statutory Maternity Pay (SMP), Statutory Paternity Pay and Statutory Adoption Pay to £135.45 from £128.73. For more information please go to www.hmrc.gov.uk/paye/rates-thresholds.htm.

Secondly, The qualifying period for unfair dismissal has gone up from one year to two years, meaning employees whose contract commence on or after the 6th April must have completed a continuous period of two years in their employment before they are eligible.

Thirdly, there have been two important new changes to Income Tax and National Insurance.  The lower earnings limit for national insurance contributions has increased from £102 to £107 (go to www.legislation.gov.uk/uksi/2012/804/made for more information) and the income tax personal allowance threshold has increased by £630, bringing it to £8,105. For more information please go to the HM Treasury website.

Unfair Dismissal ? the latest legal developments

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On 6th April a simple but highly controversial change in unfair dismissal law came into force.  From this date, the qualifying period for unfair dismissal went up from one year to two years, meaning that until an employee has completed a continuous period of two years in their employment they will not be able to bring a case of unfair dismissal.

However, it is important also to note that this only applies to employees whose contracts commenced on or after 6 April 2012.  Anyone employed before that date will qualify for unfair dismissal after a single year of continuous service.

Please update your disciplinary and grievance procedures to reflect these changes.

Top Tips for Conducting a Successful Appraisal

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Performance appraisals are a fundamental part good performance management.  It is important for the success of your business that your employees feel appreciated and that they are progressing in their careers.   Likewise, it is important that any issues with performance are managed effectively with the aim of eliminating any long term problem.

  1. Always ensure the conversation is free flowing with views expressed by both parties
  2. Ask open and probing questions
  3. Don’t interrupt or inhibit the flow of conversation
  4. Pay attention to non-verbal communication such as body language
  5. Evaluate performance, not personality
  6. Give feedback based on facts not subjective opinion
  7. Positively reinforce the good
  8. In the case of underperformance discuss corrective action
  9. Tailor your approach to each individual
  10. Be prepared to handle negative or defensive reactions
  11. Set specific, measurable, achievable, realistic and timely objectives
  12. Give deadlines/timelines for improvement
  13. Consider potential development opportunities
  14. Empower employees to come up with solutions for themselves
  15. Document each appraisal whilst it is fresh in your mind.

How to Handle Disciplinary Issues and Help Employees Improve Their Performance

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It is important to handle any disciplinary situation quickly, fairly and appropriately.  Small businesses often find it easier to deal with an incidence of misconduct informally particularly when the issue is minor in nature.  Hold an informal meeting to ensure that the employee understands why their behaviour has been deemed unsatisfactory and seek agreement/agree steps to ensure that the behaviour does not continue or recur. 

If informal warnings have not produced the desired result and the unsatisfactory behaviour continues, the next step is to arrange an investigation by an impartial Manager.  An investigation should include review of HR records and any previous warnings/issues that may have occurred, talking to other Managers with knowledge of the misconduct and interviewing any witnesses.

Should the investigation indicate that there is a disciplinary case to answer then you will need to invoke a formal disciplinary procedure.  Most companies operate a 3-stage process: (1) written warning, (2) final written warning, (3) Dismissal.  There is no legal obligation to start at the beginning of the procedure.  The type of warning issued will depend on the seriousness of the offence.

In the event of an act of gross misconduct, i.e. an act of such a serious nature that it fundamentally breaches the contractual relationship between employer and employee then you have the right to dismiss the employee immediately without notice or pay in lieu of notice.