SP Writes: I have an employee whose performance continues to slip.  I had a discussion with them a month ago regarding expectations within their role, but since then I have witnessed very little improvement. Is there grounds for a disciplinary or is there other actions I should be taking?

At this stage you may not know whether it is a behaviour issue – where the employee knows the rules and is choosing not to work hard enough – or a capability issue where they are trying their hardest but their ability to do the job is just not at an acceptable standard no matter how hard they try.

You’ll need to work out what the reason for the decline is and this is best done by having a conversation with the employee and doing some more fact-finding. Asking the right questions will help you see what the root of the issue may be and then decide how to move forward. Try to discover what it is that is stopping the employee from performing well. Refer to your previous conversation and enquire what the employee may have done to get things back on track. At the end of this discussion, you could inform the employee that you are recording the meeting as an expression of dissatisfaction with their performance and will continue to review it. At this stage, this is not formal disciplinary action. It’s best to find out the reason – conduct or capability – and then plan your procedure accordingly.

Where the employee continues to underperform, you can then start your formal procedure which will mean inviting the employee to a formal hearing as a result of which a sanction can be given to the employee. The hearing gives the employee the formal opportunity to have their say about your concerns of underperformance and they are legally allowed to have a companion attend the hearing with them although the companion cannot answer questions on their behalf. The point of the hearing is that they answer your questions and allegations but has the companion for some support.

Formal sanctions, whether for disciplinary or capability purposes, should only be given after a formal procedure where the employee is made aware of the allegations against them and has sufficient opportunity to put their case across. Not following this process, and other provisions of the Acas Code of Practice on Disciplinary Procedures, could mean that the employee has grounds for complaint.