Keep calm and carry on with your capability plan

When seeking to terminate the contract of employment through dismissal for performance, the employer must show a justifiable reason for it; namely that the employee has fallen below the standard of capability required to perform their role. Capability is contextualised with particular reference to health, physical or mental impairments as well as general performance issues that give reasonable grounds to conclude that an employee is unsuitable or incapable of carrying out their duties.

For a dismissal to be held as fair, it must be demonstrated that continued performance of the employment contract is no longer possible in the way that was originally intended. This requires a structured and detailed approach, usually implemented through a series of capability meetings and action plans that positively support the employee in reaching the desired levels of performance or help both parties to the realisation that this ultimately cannot be achieved.  What good looks like on how to conduct such meetings can be found in the ACAS codes of practice and should be carried out from the standing of a caring and reasonable employer.

There is no doubt that the Covid-19 crisis has delivered significant business disruption and has brought with it unique operational challenges; how to work from home or how to comply with social distancing guidelines in order to protect colleagues and customers. Financial challenges have dominated business planning from cash flow to furlough, unpaid invoices, business lost and an uncertain future. With so many unwelcome distractions taking priority, the periodic reviews and performance management of the team that are still working may have suffered or have taken a back seat.  his is understandable in the current climate and it may not have been top of mind with line managers to continue the process remotely during the lockdown.

More challenging may be the break in working due to furlough, where an employee may have been deep into a capability plan, either showing the necessary signs of progression or conversely failing to make the necessary improvements. The break in working time may have resulted in loss of momentum for the employee, ambiguity in the process or a temptation by the employer to ‘reset or restart’ on return to work. This demonstrates the need for line managers to conduct employee return to work interviews after furlough expires. This will help the employer to assess the thought- process and well-being of the employee, before re-instating the capability plan, taking into account any further colleague developments or changes in the workplace. It is entirely possible that any performance goals set before the lockdown may now be outdated and require amendment depending on the effects on the particular business as a whole.

Employees that have received adequate training and coaching ought to be expected to perform their roles to the levels expected by the company. A robust, effective capability plan will help protect standards and provide a structured way to support employees that may be falling below expected performance standards.