In this webinar Emma Webster, employment solicitor, shares common mistakes which are made when using capability procedures.

1. 5 common mistakes to avoid during capability procedure
Emma Webster,
Employment Solicitor,
Yesslaw

2. Lawyers supporting employees to resolve disputes without litigating
5 common mistakes to avoid during capability procedure
Introduction
This is a brief taster of some of the topics I discuss on the legal awareness day and capability conference.
My tips are based on common experiences – they are not legal advice. If you have a specific problem then seek independent legal advice.

3. Lawyers supporting employees to resolve disputes without litigating
Problems, whether they be behavioural or performance related, do not simply go away over time. If left they will end up being a drain on resources and time.
Do not bury your head in the sand and pretend it will get better. It probably won’t unless you raise it and deal with it.
An employee may not understand that they are doing something wrong. Even if they do they may not understand how to put it right.
Talk to an employee early on when problems start to arise.
If you raise it early you both (you and the employee) stand a chance of correcting it.
Mistake 1: Not talking to an employee soon enough

4. Lawyers supporting employees to resolve disputes without litigating
Mistake 2: Confusing misconduct with capability
If you try to deal with a problem under the wrong “heading” you are likely to use the wrong procedure and approach it from the wrong perspective.
A common mistake is to treat an employee who refuses to follow a reasonable management request as performing badly when actually their bad behaviour is a conduct issue.
Identify to yourself what it is the employee is doing “wrong”: Are you dealing with poor performance (failure to meet targets) or are you dealing with misconduct (refusing to do what a line manager has asked).
Think about what your concerns are about the employee and make sure you are dealing with it under the correct “heading”.

5. Lawyers supporting employees to resolve disputes without litigating
People often fail to identify what the problem is from the outset.
Failure to do this makes it hard to implement any improvement.
Identify to yourself what has the employee actually done “wrong”?
If you cannot write it down the likelihood is that you haven’t properly identified it and will not be able to explain it properly to the employee.
Before you either write to the employee or have a meeting with them sit down and write a list of bullet points of what they have done “wrong”.
Mistake 3: Being vague about the problem

6. Lawyers supporting employees to resolve disputes without litigating
If you do not identify what needs to be done to improve then the employee stands no chance of improving but you will also struggle to explain why they have failed to improve if performance continues to be poor.
Identify to yourself what can the employee do to put it right?
If you cannot identify what steps are needed by the employee then how will they get better and how will they evidence their improvement to you?
Write a suggested list of objectives before your meeting.
At the meeting try and agree that list with the employee and a clear time frame for those aims.
Then you will both have a clear framework to work within.
Mistake 4: Not being clear about how to improve

7. Lawyers supporting employees to resolve disputes without litigating
Failing to identify why change is needed often leads to resentment and a failure to improve.
An employee will want to understand why you’re performance managing them. Otherwise they may feel picked on or singled out.
Be clear as to why you need them to change.
If they can understand the impact their behaviour or poor performance is having on you or the team or the children, then they will have a reason to improve and a context within which they can understand the objectives you have sent.
Mistake 5: Not knowing or sharing why the change is needed

8. Lawyers supporting employees to resolve disputes without litigating
Top Tips
1.It sounds obvious, but when you are considering how to tackle someone’s underperformance, put yourself in their shoes. How would you like to be treated in similar circumstances? Be fair.
2.Set realistic targets and deadlines for any required improvement.
3.Support your employee as best you can. This will either result in performance improvement, or it will clearly demonstrate that they cannot do their job. If you do not offer support, neither of these things will be possible.