These tips and mistakes may sound obvious when they’re set out in black and white but, from my experience, these mistakes are frequently made by managers. Tackling someone’s poor performance can be very stressful for managers too and, at times of stress, we often forget to take basic steps before plunging into the middle of a procedure rather than starting carefully at the beginning.

Dismissal should not come as a surprise to the employee.

You will not have followed a fair process or managed the situation properly if, by the end of their final capability meeting, they do not realise that they are likely to be dismissed. This doesn’t mean that you prejudge the outcome; it means that they should understand what they have to achieve in order to stay and can see for themselves when they haven’t attained those targets.

Not keeping a note of all your meetings.

There are inevitably disagreements or different interpretations of what was said or agreed at a meeting. Keeping an agreed note of the meetings avoids that becoming an issue.

Making a decision that you want to dismiss someone before you have given them a chance to improve.

If you approach a capability dismissal with the intention to dismiss, you will set the person up to fail. Even if you think it is unlikely that they can improve, you must approach the process with the intention of trying to help them, not trying to dismiss them.

Confusing misconduct with capability.

Sometimes this is a difficult call to make. Is someone refusing to work in a certain way because they do not want to, or is it because they are not able to? It is probably misconduct if they do not want to work that way (or cannot be bothered). If they cannot work in that way, it is probably capability.

If you are not sure, I would suggest that it is usually best to approach it as a capability rather than a conduct issue. The process is less accusatory and gives the person an opportunity to change.

No joined-up thinking between you and the employee’s line manager

Ideally, the line manager will lead the process, however this is not always appropriate or possible; for example, when a line manager doesn’t have the skills to take someone through the process in a fair way and with the best chance of the individual improving. When it’s not appropriate for the line manager to lead the process you need to get them on board first – they are critical to the success of any capability management. If they undermine the process by either helping or hindering the individual, the process is likely to be unfair, as you will not be able to properly assess their performance.

It may be that the line manager is conducting the performance management process themselves but at your instigation or with your support. In those situations, where you are not directly involved during the capability meetings, you will need to make sure that the line manager sufficiently understands your concerns and requirements.

Not giving a proper opportunity to improve.

Send them on that course. Offer them 1-1 support and guidance. Create a ‘Support and Challenge Plan’. Do what you think they need to really help them improve. Document all those steps. If that does not work, you will know that you are right to dismiss them.

Not setting realistic and attainable targets.

Be careful not to hold them to your high standards. Try to secure their agreement about what is attainable. If it can’t be agreed, record in writing why you think it is reasonable, and why they don’t. Make the timeframes realistic.

No teacher is going to be able to suddenly turn around a failing class in four weeks.

Emma Webster, Joint CEO & Employment Solicitor, YESS Law

YESS Law believes that ‘life’s too short to litigate’ and Emma uses her wealth of experience to support many educationalists to navigate capability without going to court. Leaders are expected to somehow just “know” the intricacies and pitfalls of complicated staff management and care issues, despite having little or no training in these areas. These issues, if they are not dealt with effectively, become a drain on the head’s time, the school’s limited resources, and have a negative impact on the school’s ability to educate the children. Emma’s goal is to try and help you deal with those problems promptly so that you can go back to focusing on education. Emma also sits as a part-time Employment Judge at London South Employment Tribunal and was recently a school governor.

Hear Emma speak at ‘Capability Conference: Kindly and effectively tackling under-performance in schools’ on 15th November 2018 at Friends House, Euston Road, NW1 2BJ.