Capability vs Conduct Issues

Understanding the difference between capability and conduct ensures the right approach is taken to workplace issues.

Definitions

Capability

Relates to ability to do the job:

• Skills and competence
• Knowledge and qualifications
• Physical or mental health
• Whether employee can perform

Conduct

Relates to behaviour at work:

• How employee behaves
• Following rules and policies
• Attitude and cooperation
• Whether employee will perform

Key Differences

Nature of the Issue

Capability	Conduct
Can't do the job	Won't do the job
Lacks ability	Has ability but doesn't use it
Skill or health issue	Behaviour or attitude issue
Often not employee's fault	Employee makes a choice

Appropriate Response

Capability	Conduct
Support and training	Disciplinary procedure
Time to improve	Warnings for breach
Consider adjustments	Consider sanctions
Less blame-focused	Accountability-focused

Examples

Capability Issues

Example	Why It's Capability
Can't meet sales targets despite trying	Lacks skills needed
Makes errors despite training	Can't grasp requirements
Slow work pace	Unable to work faster
Can't learn new system	Knowledge gap
Health affecting attendance	Physical capability
Disability affecting performance	Protected characteristic

Conduct Issues

Example	Why It's Conduct
Deliberately does minimum work	Choice not to try
Refuses to follow instructions	Insubordination
Regular lateness	Behavioural issue
Inappropriate comments	Misconduct
Breach of policy	Rule-breaking
Dishonesty	Behavioural choice

Grey Areas

Performance That's Borderline

Sometimes unclear which applies:

Situation	Could Be
Targets not met	Capability (can't) or conduct (won't)
Poor quality work	Skill gap or carelessness
Slow work	Ability issue or lack of effort
Attendance	Health or attitude

How to Determine

Questions to ask:

1. Is the employee trying?
2. Have they ever performed adequately?
3. Has training been provided?
4. Are there external factors?
5. Is there a pattern of behaviour?
6. What does the employee say?

Procedures

Capability Procedure

Typical steps:

1. Informal discussion about concerns
2. Set clear expectations and targets
3. Provide training and support
4. Regular review meetings
5. Performance improvement plan
6. Warnings if no improvement
7. Consider alternatives (redeployment)
8. Dismissal if improvement not achieved

Conduct/Disciplinary Procedure

Typical steps:

1. Investigation into allegations
2. Invitation to disciplinary meeting
3. Hearing with right to be accompanied
4. Decision and sanction
5. Right to appeal
6. Further action if repeated

Key Process Differences

Capability	Disciplinary
Focus on support	Focus on accountability
Longer timescales	Can be quicker
Less formal initially	Formal from start
Performance targets	Standards of behaviour
Review meetings	Hearings

Why Getting It Right Matters

If Treated as Conduct When It's Capability

Risks:

• Unfair dismissal
• Disability discrimination (if health-related)
• ACAS Code breach
• Employee demoralised

If Treated as Capability When It's Conduct

Risks:

• Issue not properly addressed
• Other employees see no consequences
• Prolonged poor behaviour
• May still need disciplinary eventually

Health-Related Capability

Special Considerations

When poor performance is health-related:

• May be disability (legal protection)
• Requires reasonable adjustments
• Occupational health involvement
• More support expected
• Different standards may apply

Disability

If condition amounts to disability:

• Duty to make reasonable adjustments
• Can't dismiss without considering adjustments
• Failure to adjust is discrimination
• Higher bar for fair dismissal

Mixed Issues

When Both Apply

Sometimes capability and conduct overlap:

Scenario	Approach
Can't do core task, also has attitude problem	Address both separately
Poor performance with dishonesty	Disciplinary for dishonesty
Health affecting performance, also uncooperative	Capability for health, conduct for cooperation

Keep Them Separate

If both issues exist:

• Run processes in parallel or sequence
• Don't confuse the two
• Clear documentation for each
• Consider which is primary issue

Fair Dismissal

For Capability

Dismissal may be fair if:

• Clear standards were set
• Employee knew expectations
• Support was provided
• Time to improve was given
• Warnings were issued
• Alternatives considered
• Reasonable decision to dismiss

For Conduct

Dismissal may be fair if:

• Full investigation conducted
• Employee heard allegations
• Chance to respond given
• Evidence supports finding
• Sanction is proportionate
• Procedure was followed
• Appeal offered

Tips for Employers

Identifying the Issue

1. Listen to the employee - what do they say?
2. Review history - have they performed before?
3. Consider circumstances - what might affect performance?
4. Get medical input - if health may be factor
5. Look at patterns - consistent or variable?

Choosing the Right Procedure

Factor	Suggests Capability	Suggests Conduct
Trying hard	Yes	No
Acknowledged issue	Yes	Maybe
Previous good performance	Possibly	Possibly
Deliberate behaviour	No	Yes
Attitude problems	No	Yes
Health factors	Yes	No

Tips for Employees

If Facing Capability Process

• Engage constructively
• Ask for support you need
• Take training seriously
• Document your efforts
• Be honest about difficulties
• Consider if role is right for you

If Facing Disciplinary Process

• Understand the allegations
• Prepare your response
• Gather evidence
• Attend with companion
• Stay professional
• Exercise appeal rights

If Process Seems Wrong

If capability treated as conduct:

• Raise this concern
• Explain it's ability, not behaviour
• Request appropriate support
• Seek medical evidence if relevant
• Get advice on rights