Poor Performance or Misconduct? Why the Difference Matters
When an employee isn't meeting expectations, one of the first things an employer needs to establish is what kind of problem they are dealing with.
Is the employee struggling to perform their role to the required standard, or are they behaving in a way that may amount to misconduct?
The distinction matters because poor performance and misconduct aren't necessarily managed in the same way. Choosing the wrong approach too early can create confusion, waste time and increase the risk of an unfair process.
What Is Poor Performance?
Poor performance generally relates to an employee's capability to perform their role to the required standard.
Examples might include an employee who:
• consistently makes mistakes
• struggles to meet reasonable deadlines
• produces work below the required standard
• doesn't achieve reasonable objectives
• has difficulty carrying out important aspects of their role
The important point is that the employee may genuinely be trying to perform well but isn't currently achieving the standard required.
Before moving towards formal action, the employer should understand why.
Questions to consider might include:
• Does the employee understand what is expected?
• Have the required standards been clearly communicated?
• Have they received appropriate training?
• Have concerns previously been discussed with them?
• Have they had a reasonable opportunity to improve?
• Is the workload or objective reasonable?
• Could a health condition or another underlying issue be affecting their performance?
Depending on the answers, further support, clearer objectives, training or a structured performance improvement process may be appropriate.
What Is Misconduct?
Misconduct generally concerns an employee's behaviour or conduct, rather than their ability to perform their role.
Examples might include inappropriate workplace behaviour, unauthorised absence, failure to follow reasonable instructions or breaches of workplace rules.
Where misconduct is suspected, the employer shouldn't assume the allegation is true and immediately decide on an outcome.
The circumstances may need to be investigated first.
The employee should then have an appropriate opportunity to understand and respond to the allegations before a disciplinary decision is made.
Ask Whether the Problem Is Ability or Behaviour
A useful starting point is to consider whether the employee is unable to meet the required standard or is capable of doing so but isn't behaving as reasonably required.
For example, imagine an employee repeatedly completes an important task incorrectly.
If they don't understand how to complete it despite genuinely trying, the issue may relate to performance and capability.
If they know how to complete it but deliberately refuse to follow a reasonable instruction, that may indicate a conduct issue.
The result may look identical to the manager because the work hasn't been completed correctly.
The reason behind it is different, and that can affect the appropriate HR response.
Avoid Making Assumptions
Managers can understandably become frustrated when an employee isn't performing.
After explaining something several times, it may feel as though the employee simply doesn't care or isn't trying.
That conclusion shouldn't be reached without understanding the circumstances.
There could be insufficient training, unclear expectations, workload problems, health concerns or another underlying issue affecting the employee's performance.
Equally, there will be situations where an employee understands what is required but fails to comply with reasonable expectations.
Establishing the facts helps the employer distinguish between the two.
Can Poor Performance Become Misconduct?
Performance and conduct can sometimes overlap.
An employee may initially have a genuine performance problem and be given reasonable support to improve. If they subsequently refuse to engage with that support, deliberately ignore reasonable instructions or repeatedly fail to attend appropriate review meetings without good reason, separate conduct concerns could arise.
This doesn't necessarily transform the original performance issue into misconduct.
It may mean there are now two different issues requiring consideration.
Employers should therefore respond to the facts as they develop rather than forcing the entire situation into one category.
What If Health Is Affecting Performance?
If there is information suggesting that health may be contributing to poor performance, employers should consider this before deciding what action to take.
Depending on the circumstances, further information may be appropriate to understand whether the employee's health affects their ability to perform their role and whether support could help.
Where a health condition amounts to a disability under the Equality Act 2010, the employer may also need to consider reasonable adjustments.
The existence of a health condition doesn't automatically prevent an employer from addressing performance concerns. It means the employer should ensure they understand the relevant circumstances before deciding what is reasonable.
What Should I Do Before Starting a Formal Process?
Before deciding that a capability or disciplinary process is necessary, take a moment to establish the position.
Consider:
• What exactly is the employee doing or failing to do?
• What evidence supports the concern?
• What standard is reasonably expected?
• Does the employee understand that standard?
• Has the concern previously been raised?
• What explanation has the employee given?
• Is further information required?
• Could training, support or health be relevant?
• Does anything need investigating?
• What does your relevant company procedure say?
The answers should help determine the appropriate next step.
Keep Appropriate Records
Whichever route is appropriate, maintain clear records of important conversations, concerns, support and decisions.
For performance concerns, this could include the standards expected, examples of the performance gap, support provided, agreed objectives and review outcomes.
For misconduct concerns, records may include the allegation, investigation information, relevant evidence, meetings and reasons for decisions.
Good records make it easier to understand how a situation has developed and why particular action was taken.
How Can Leo Help?
You don't need to decide whether something is capability or misconduct before asking Leo for help.
Tell Leo what's happening.
Leo can help you work through the facts, identify important missing information and consider whether the concern appears to relate to performance, conduct or another issue that needs exploring.
For example, Leo may help you consider whether expectations were clear, whether appropriate support has already been provided, whether health could be relevant or whether further investigation is needed before formal action is considered.
If the issue is being managed as a workplace Matter within Leo HR, the relevant history can remain together as the situation develops.
Once the appropriate next step is clearer, Leo can also help with the practical work that follows, such as preparing for conversations or meetings and drafting appropriate HR communications.
The important thing is not to start with the letter or the process.
Start by understanding the problem.
Leo can help you do that before you act.