Performance & Capability

All workplaces should have policies on what will happen if performance or capability drops below a required standard, so that employees know what is expected of them. These policies are normally contained within the staff or employee handbook. This is something every employer should have.

This is a complex area and it is important for businesses to give themselves a good starting point by having policies and procedures in place, and by then following those procedures. It may also be helpful to take legal advice on any capability situation to make sure that you are not leaving your business vulnerable to legal claims.


All employers want to get the best out of their employees. Being aware of how they are performing is a crucial element of this. Where standards slip employers need to be able to manage employees’ performance in order to allow them the opportunity to improve. If sufficient improvement is not forthcoming, employers need to know how to take steps to deal with the situation fairly which may ultimately include dismissal.

Every business should have a clear policy on how such situations will be handled. Whilst there is no legal requirement to have performance procedures they are very useful in assisting an employer to deal with performance issues and ultimately in resisting employment tribunal claims such as unfair dismissal. As an employer it is important to follow any policy you have set out. It may also be appropriate to consider taking legal advice on the situation, particularly if you are contemplating a dismissal of the employee in question, to make sure that you are proceeding in a legally fair way which will of course help protect your business from legal claims. Training for managers/supervisors on the procedure will help to ensure that it is implemented properly and consistently.

An employer with a performance procedure should protect itself additionally by making sure it documents the various stages along the way ie recording all meetings, keeping copy letters etc. That will assist in defending any claims that may be brought as the documentation will demonstrate the steps that the employer took.


Equally, you may have an employee who no longer has the capability to carry out their job role, for example if they have developed a long term health issue. Whilst it is important to ensure employees are not discriminated against, it is important to have a procedure for dealing with loss of or reduction of capability to perform a job.

Such a procedure may well be very similar to a performance management procedure, but equally in some cases it will fall as part of an absence management procedure for long term sickness absences.


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How we can help

Our specialist employment solicitors have a wealth of knowledge and experience in supporting employers with performance and capability issues and will give you all the advice and guidance you need. From drafting the appropriate policies, to supporting and advising through any particular procedure, we can also draft any letters you wish to send to your employees to allow you more time to concentrate on your business. We can also assist with training your managers and key personnel on how to implement and apply these policies if necessary.

If you would like more information or just want a confidential, no obligation chat about your options, contact our highly experienced team today.

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