Poor Performance or Misconduct? Why the Difference Matters
An employee isn't doing what their manager expects.
Deadlines are being missed. Standards are slipping. Instructions aren't being followed and the rest of the team is becoming frustrated.
The manager has reached the point where something needs to happen.
Is this poor performance or misconduct?
The distinction matters because they are not necessarily the same problem and shouldn't automatically be managed in the same way.
Poor performance generally concerns an employee's capability to perform their role to the required standard. Misconduct generally concerns their behaviour or conduct.
Sometimes the distinction is obvious. Often it isn't.
Before starting a performance or disciplinary process, employers should first understand what they are actually dealing with.
What Is Poor Performance?
Poor performance usually means an employee isn't performing their work to the standard reasonably required of them.
For example, an employee might consistently make mistakes, struggle to meet reasonable deadlines, produce work below the required standard or fail to achieve objectives.
The important issue is usually one of capability.
The employee may be trying to perform well but isn't currently capable of meeting the required standard.
That raises important questions for the employer.
Have expectations been made clear? Does the employee understand the required standard? Have they received appropriate training? Is the workload reasonable? Have they been given feedback? Is there anything preventing them from performing effectively?
The purpose of good performance management is not simply to create a record of failure. It should help establish why the problem exists and whether the employee can improve.
What Is Misconduct?
Misconduct concerns behaviour rather than an employee's ability to perform their job.
Examples could include inappropriate behaviour towards colleagues, unauthorised absence, refusing reasonable management instructions, breaches of workplace rules or other conduct that falls below the standards expected by the employer.
The question becomes less about “Can this employee do the job?” and more about “Has this employee behaved in a way that may breach the standards required of them?”
Where misconduct is suspected, an employer may need to establish what actually happened before deciding whether disciplinary action is appropriate.
That usually means investigation before outcome.
Ability or Behaviour?
A useful starting point is to ask:
Is the employee unable to meet the required standard, or are they choosing not to?
Imagine an employee repeatedly fails to complete an important report correctly.
If they don't understand the system despite genuinely trying, that may indicate a performance or capability issue.
If they understand exactly what is required but deliberately refuse to complete the report because they don't think they should have to, the issue may be conduct.
The outcome is the same in both examples: the report isn't completed properly.
The reason behind it is completely different.
That reason can affect how the employer should respond.
Avoid Assuming Someone “Doesn't Care”
Managers can understandably become frustrated with poor performance.
After explaining something several times, it may feel as though the employee simply isn't trying.
That conclusion shouldn't be reached without understanding the facts.
An employee might be struggling because they haven't been properly trained. Instructions may be unclear. Their workload may have changed. There could be a health issue affecting their work or another underlying problem the manager doesn't yet know about.
Equally, there are situations where an employee understands what is expected and simply fails to comply with reasonable requirements.
The employer needs to establish which situation they are facing rather than allowing frustration to make the decision for them.
Sometimes Performance and Conduct Overlap
Not every situation fits neatly into one category.
An employee may initially struggle with performance and then fail to engage with reasonable attempts to improve it.
For example, a manager may provide additional training and clear objectives. The employee understands what is required but repeatedly refuses to attend review meetings or deliberately ignores reasonable instructions intended to address the problem.
The original issue may have been capability.
Their subsequent behaviour could raise separate conduct concerns.
This is why HR problems should be managed according to the facts as they develop rather than forcing the entire situation into a label chosen at the beginning.
Why Getting It Wrong Matters
If an employer treats genuine poor performance as misconduct, the employee may effectively be blamed for something they haven't been given a reasonable opportunity to improve.
The employer might also miss important questions about training, expectations, support or health.
Treating deliberate misconduct purely as poor performance can create a different problem. The employer may repeatedly provide training and performance support when the real issue is the employee's behaviour.
Using the wrong process can waste time, create confusion and increase the risk of an unfair outcome.
Before deciding what procedure to follow, understand the problem.
What Should Employers Do About Poor Performance?
Where the issue appears to be capability, employers should normally start by establishing the performance gap.
What standard is required?
What is the employee actually achieving?
How significant is the difference?
The employee should understand the concern and have an opportunity to explain their perspective.
Depending on the circumstances, the employer may then need to consider appropriate support such as training, clearer objectives, additional guidance or a reasonable period in which improvement can be demonstrated.
Where performance remains below the required standard despite appropriate support, a more formal capability process may eventually become necessary.
The exact approach will depend on the circumstances.
What Should Employers Do About Misconduct?
Where misconduct is suspected, the employer should avoid deciding the outcome before establishing what happened.
An appropriate investigation may be required.
The scope will depend on the allegation. In some cases, reviewing a small number of documents and speaking to the employee may be sufficient. More serious or disputed allegations could require a more detailed investigation.
If there is a disciplinary case to answer, the employee should understand the allegations and have an appropriate opportunity to respond before a decision is made.
The Acas Code of Practice on disciplinary and grievance procedures should also be considered where applicable.
What If Health Is Affecting Performance?
This is an important area to identify before assuming an employee simply isn't good enough at their job.
Health conditions can affect concentration, attendance, stamina, memory and an employee's ability to carry out particular tasks.
If the employer becomes aware that health may be contributing to the performance concern, further information may be needed.
Where a health condition amounts to a disability under the Equality Act 2010, the employer may also need to consider reasonable adjustments.
This doesn't mean poor performance can never be addressed where health is involved.
It means the employer needs to understand the situation properly before deciding what action is reasonable.
Keep Clear Records
Whether the issue is performance or conduct, employers should maintain appropriate records.
For performance concerns, that might include expectations, examples of the problem, meetings, support provided, objectives and review outcomes.
For misconduct, records might include the allegation, investigation information, relevant evidence, meeting notes and the reasons for decisions.
Good records help everyone understand what has happened and reduce the need to reconstruct the history months later.
They also encourage managers to base decisions on evidence rather than memory.
Don't Start With the Letter
One of the easiest mistakes to make when an employee problem arises is to start searching for a template.
“I need a disciplinary letter.”
Perhaps.
The more important question is whether disciplinary action is actually the appropriate next step.
A beautifully drafted letter doesn't make the wrong process right.
The thinking has to come first.
How Leo HR Helps Employers Get the Starting Point Right
This is exactly the type of situation where Leo can help before unnecessary risk is created.
An employer doesn't need to begin by deciding whether they have a disciplinary or capability Matter.
They can start by telling Leo what's happening.
Leo can help separate the facts from the manager's assumptions and identify the information that would materially affect what happens next.
Is the concern about ability or behaviour?
Does the employee know what is expected?
Has appropriate support been provided?
Is there information missing?
Could health be relevant?
Does something need investigating?
Is formal action actually necessary yet?
That can help the employer choose the right path before sending letters or starting processes.
Leo Can Stay With the Matter
Once the appropriate direction becomes clearer, Leo HR can help the employer manage the Matter as it develops.
Relevant history can remain together, allowing the employer to maintain a clearer picture of conversations, information, actions and decisions.
Leo can then support the practical work that follows, whether that means preparing for a performance conversation, considering investigation questions, drafting appropriate communications or helping the employer determine the next proportionate step.
Leo is available 24/7, so managers can ask for support before they act, rather than discovering afterwards that they approached the situation incorrectly.
Diagnose the Problem Before Choosing the Process
Poor performance and misconduct can both create serious problems for a business.
Neither should automatically lead to dismissal and neither should be ignored.
The key is understanding what is actually happening.
Is the employee unable to meet the required standard?
Have they not been given what they reasonably need to succeed?
Is there an underlying issue?
Or are they capable of meeting the requirement but behaving in a way that raises a conduct concern?
The correct process becomes much easier to identify once the employer understands the problem.
That's why good HR management starts with judgement, not paperwork.
And it's why Leo is designed to help employers think before they act.
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