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HR tip: Analysing poor performance – is it misconduct or incapability?

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These questions are being answered by Learn HR, a market leader in the provision of HR and payroll training and nationally-recognised professional qualifications.


Question: "I understand that Misconduct and Incapability both are fair reasons for dismissal. Which do we use if the problem is one of poor performance?"

HR Tip: You need to have a discussion with the employee to try to identify the reason for the poor performance. In many cases the reason is that the employee did not know the standard required or was not aware that he or she was failing to work to it. If neither of those brings a solution, you need to ascertain whether the reason is essentially "won't do" or "can't do".

If the former, you need to spell out the performance level required, offer any appropriate help or support, and explain that, if the standard is not reached within a reasonable time, you will take disciplinary action. Ultimately if you had to dismiss, you would do so on grounds of misconduct. If it is "can't do", you should do all that you can to raise the employee's level of performance by training, coaching, changing the work environment or whatever.

Should that fail you should take all reasonable steps to redeploy the person. And if none of this worked you would be entitled to dismiss on grounds of incapability. These processes may sound expensively time consuming, but nevertheless are likely to be less costly than dismissing then recruiting and training a stranger.

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