Capability Procedure

Capability procedures address performance issues fairly, giving employees support and opportunity to improve before considering dismissal.

What Is Capability?

Legal Definition

Capability under Employment Rights Act means:

• Skill
• Aptitude
• Health
• Any other physical or mental quality

Types of Capability Issues

Type	Examples
Performance	Not meeting targets, quality issues
Skill gaps	Lacking required competencies
Health-related	Illness affecting work
Qualifications	Lost or lacking required certification

Not Capability

Issue	Usually Dealt With As
Deliberate poor work	Conduct
Refusal to work	Conduct
Attitude problems	Conduct
Negligence	May be conduct

Capability vs Disciplinary

Key Differences

Capability	Disciplinary
Can't do	Won't do
Support focus	Sanction focus
Improvement aim	Correction aim
Training/help	Warnings
Longer timescales	Often quicker

Why It Matters

Using wrong procedure:

• May be unfair dismissal
• Sends wrong message
• Applies wrong remedies
• May not address real issue

Capability Procedure Stages

Stage 1: Informal

Before formal procedure:

Action	Purpose
Identify issues	Specific concerns
Discuss with employee	Understand barriers
Offer support	Training, coaching
Set expectations	Clear standards
Review period	Check for improvement

Stage 2: First Formal Meeting

If informal doesn't resolve:

1. Invite to meeting (advance notice)
2. Right to be accompanied
3. Explain concerns with specifics
4. Hear employee's response
5. Identify support needed
6. Set improvement targets
7. Confirm in writing

Stage 3: Review Period

Element	Content
Timeframe	Realistic for improvement
Support	Training, coaching, adjustments
Monitoring	Regular check-ins
Feedback	Ongoing, honest
Documentation	Record progress

Stage 4: Further Formal Stages

If insufficient improvement:

• Second meeting
• Further targets/support
• Warning of potential consequences
• Another review period
• Final meeting if still not improved

Stage 5: Dismissal Decision

If all stages exhausted:

• Final meeting
• Consider all evidence
• Hear employee's response
• Consider alternatives
• Make decision
• Confirm in writing with appeal right

Fair Procedure Requirements

What Tribunal Expects

Requirement	What It Means
Clear standards	Employee knows what's expected
Specific concerns	Not vague criticism
Support offered	Training, resources, help
Reasonable time	Opportunity to improve
Genuine assessment	Fair evaluation of progress
Alternatives considered	Before dismissal

ACAS Code

The ACAS Code applies to capability dismissals:

• Investigation of issues
• Inform employee of concerns
• Allow opportunity to respond
• Allow companion
• Right of appeal

Setting Targets

Good Targets Are

Characteristic	Example
Specific	"Process 20 applications per day"
Measurable	Can verify achievement
Achievable	Realistic given support
Relevant	Related to the concern
Time-bound	Clear deadline

Poor Targets

Problem	Example
Vague	"Improve your work"
Unrealistic	Impossible standards
Irrelevant	Not addressing the issue
No deadline	Open-ended

Support and Training

Types of Support

Support	When Appropriate
Training courses	Skill gaps
Coaching	Development needs
Mentoring	Experience transfer
Reduced workload	Learning time
Additional resources	Tools needed
Reasonable adjustments	Disability-related

Documenting Support

Record:

• What support was offered
• What was provided
• Employee's engagement
• Impact on performance
• Any barriers identified

Review Periods

Appropriate Length

Situation	Typical Period
Simple skill gap	4-6 weeks
Complex performance	8-12 weeks
Role change	Longer as needed
Health-related	Depends on condition

During Reviews

Activity	Frequency
Progress meetings	Weekly or fortnightly
Formal reviews	At key milestones
Feedback	Ongoing
Documentation	After each meeting

Employee's Rights

Throughout Process

• Know specific concerns
• Respond to allegations
• Be accompanied at formal meetings
• Receive support to improve
• Reasonable time to improve
• Fair assessment
• Appeal any outcome

At Meetings

• Advance notice
• Written details of concerns
• Companion (colleague or union rep)
• Present your case
• Ask questions
• Respond to evidence

Health-Related Capability

Special Considerations

Factor	Requirement
Medical evidence	Usually needed
Occupational health	Consider referral
Disability	May need adjustments
Prognosis	Affects approach
Alternative roles	Should consider

Disability Discrimination

If health issue is disability:

• Duty to make reasonable adjustments
• Cannot treat less favourably
• Must consider adjustments before dismissal
• Failure may be discrimination

Medical Evidence

Before dismissing for health:

• Get medical report (with consent)
• Understand prognosis
• Consider adjustments
• Consult with employee
• Make informed decision

Common Mistakes

Process Failures

Mistake	Why It's Problem
Using disciplinary	Wrong procedure
No support offered	Unfair
Targets unrealistic	Set up to fail
Review too short	No real chance
No formal warnings	Dismissal surprise

Substantive Failures

Mistake	Why It's Problem
Vague concerns	Employee can't address
No evidence	Hard to justify
Ignoring improvement	Unfair assessment
Not considering health	May be disability
No alternatives	Dismissed too quickly

Alternative Actions

Before Dismissal, Consider

Alternative	When Appropriate
Demotion	Suitable lower role exists
Transfer	Different role suits skills
Retraining	Investment worthwhile
Reduced duties	Modified role viable
Extended support	More time would help

Why Alternatives Matter

Tribunal asks:

• Did employer consider alternatives?
• Was dismissal only option?
• Were there other suitable roles?
• Would retraining have helped?

Documentation

What to Keep

Document	Content
Meeting notes	All formal meetings
Targets set	Specific objectives
Support provided	Training records
Progress reviews	Regular assessments
Correspondence	All letters and emails
Final decision	Reasoning documented

Why It Matters

Good documentation:

• Shows fair process
• Demonstrates support
• Records opportunities given
• Justifies final decision
• Defends tribunal claim

After Capability Dismissal

For Employers

• Confirm in writing
• Include appeal right
• Process final pay
• Provide reference fairly
• Keep records

For Employees

If dismissed:

• Consider appeal
• Review process fairness
• Assess tribunal claim
• Gather evidence
• Seek advice

Practical Tips

For Employees

1. Engage constructively
2. Ask what's specifically expected
3. Request support you need
4. Document your efforts
5. Raise any barriers
6. Keep records
7. Know your rights

Questions to Ask

• What exactly is the concern?
• What standard am I expected to meet?
• What support will I receive?
• How long do I have to improve?
• How will progress be measured?
• What happens if I improve/don't improve?