Should an employer deal with an employee's poor performance through its disciplinary or capability procedure?

Whether an employer should deal with an employee's poor performance through its disciplinary or capability procedure will depend on the nature of the poor performance. The employer will need to carry out an investigation, which will include meeting with the employee concerned, to establish whether the employee's poor performance is conduct or capability related. If it is conduct related (ie the employee has some control over his or her actions), it is appropriate for the employer to follow its disciplinary procedure. However, if the employee's poor performance is capability related (ie he or she does not have control over his or her failure to meet the employer's standards of performance), it will be appropriate for the employer to follow a capability procedure for performance management.

It is not always obvious whether an employee's poor performance is due to capability or conduct. In some cases it will be a combination of the two. The employer may need to adopt the procedure that appears to it to be the most appropriate, and change course if the evidence that emerges suggests that this is necessary. Irrespective of which procedure the employer follows, it should comply with the Acas code of practice on disciplinary and grievance procedures