Distinguishing between conduct and performance issues in the workplace

Author: Danielle Scott, solicitor and senior employment law adviser at WorkNest 

An employee isn’t performing to the required standards. But are you dealing with a conduct or performance issue?

Employers sometimes fall into the trap of using the disciplinary procedure to manage what is a performance problem. Could you tell me how you identify the correct route to take?

It is often helpful to step back and consider whether you’re dealing with an employee who ‘can’t cook’ or ‘won’t cook’.  

Performance (‘can’t cook’)

Performance/capability refers to an employee's ability to perform their job to the required standard. 

You are dealing with a performance issue if they are willing to perform, despite being given the appropriate training and support, trying hard but still struggling.

An example would be an employee who is slow at work because they need help with the IT system. In this scenario, further training can be arranged.

Genuine performance issues will fall under your performance management/capability policy as the employee may not have the skills, ability or knowledge to do the job.

When dealing with performance issues, a more supportive approach may be required. The aim should be to identify the root cause and provide the appropriate training, support, and development opportunities to help the employee improve.

In some cases, it may be necessary to adjust the employee's job responsibilities or provide additional resources to support them.

Conduct (‘won’t cook’)

Conduct refers to an employee's behaviour, actions, and adherence to company policies and procedures. 

Suppose they have the necessary skills and training to perform their role and can do so but aren’t because they are lazy, distracted, late, or refusing reasonable instructions. In that case, you are dealing with a conduct-related performance issue.

An example would be someone who is slow at their job because they take frequent breaks, chat with colleagues, or use their mobile phone when they should be working.  

Conduct-related issues should be handled under your disciplinary policy, and disciplinary action may be necessary, such as verbal or written warnings, suspension, or termination of employment. 

Disciplinary action aims to address employees' behaviour and ensure they comply with company standards.

Blurred lines

When it is difficult to distinguish whether you are dealing with a conduct or performance issue, it is often less risky to go down the performance management route initially rather than the disciplinary route. Usually, the lines are blurred, which could be a mixture of the two. However, you should, in reality, separate the performance concerns from the conduct concerns and run two procedures simultaneously.

Is it ever OK to deal with performance issues under the disciplinary policy? 

Probably not. You should only use the disciplinary procedure if the matter is an actual conduct issue. 

It will not be acceptable to deal with performance as a disciplinary matter unless underperformance is also linked to a behavioural issue, for example, if the individual takes too long to complete tasks because they are talking too much or on their phone.

Don’t risk it

When dealing with employee underperformance, failure to follow the route can run the risk of unfair treatment or legal disputes, employee appeals, disengagement and reduced job satisfaction, all of which negatively impact your organisation.

If you have any doubts, please look for advice.

The following blog post is for informational purposes only and should not be considered professional or legal advice. The views and opinions expressed in this post are those of the author and do not reflect the official policy or position of the National Association of Local Councils. Any links to external sources included in this blog post are provided for convenience and do not constitute endorsement or approval of those websites' content, products, services, or policies. Therefore, readers should use discretion and judgment when applying the information to their circumstances. Finally, this blog post may be updated or revised without notice.