If an employee has a really bad attitude, is this a conduct or capability issue?

An employee's bad attitude could amount to a conduct or capability issue, or both. If an employee is being deliberately antagonistic or wilfully ignoring guidance or instructions on a particular point, this will normally constitute misconduct. However, if this bad attitude is caused by stress because they are struggling to carry out the role due to a lack of training and support, or by a genuine failure to understand what is required, it could be a capability rather than a conduct issue. Sometimes the distinction between conduct and capability is not clear cut. However, if an employer merely attaches the wrong label to an employee's poor attitude, this will not necessarily result in a subsequent dismissal being found unfair, provided that the employer made clear to the employee the extent of the problem and they were given a chance to address it.

In the event that an employee is displaying a poor attitude, their manager should sit down with them, initially on an informal basis, to discuss the matter. The manager should set out examples of the employee's poor attitude, for example where they have been rude or dismissive to colleagues or clients, rather than simply accusing them of having a bad attitude. The employee may be unaware that they are perceived as having a bad attitude and the employer raising the issue may be all it takes to bring about a change. This conversation may also reveal the reasons for the employee's bad attitude, which may be something that the employer can address.