C is for...

C is for...There are lots under the letter ‘C’ to choose from but I’m going to focus on Capability vs Conduct, Consultation and Contracts of employment (statement of employment particulars).


Capability vs Conduct

To put this in its most simple form - capability = can’t do (no matter how hard they try) and conduct = won’t do

When you have an issue with an employee’s performance, you need to work with them to try and bring their performance up to the required standard (especially if they have over 2 years’ service). This could be through training, 121 coaching or shadowing someone else. However, what I usually find is that when someone is underperforming, the issue gets ignored and ignored (because it is on the too difficult pile) until the manager gets so frustrated that they then phone me to say ‘I want them gone – they can’t do their job!!’.

There is a perception by managers that they think managing someone’s performance has to be a really long and painful process which is why they put it off. It doesn’t have to be. It just needs some clear targets for the employee, some regular catch ups to check progress against the targets and hopefully as a result, their performance improves as that is what we want. That improvement also then needs to be sustained at that improved level.  

It becomes a bit more blurry when an employee’s performance improves but then drops again. There could be some reasons for this but this is when it could be more of a conduct issue (a won’t do) rather than a capability issue (a can’t do).  

When this happens we move into the disciplinary process which you can find out more about in my next exciting instalment of HR A-Z!!


Consultation is when you talk with employees and their representatives to explain your planned changes and get their feedback and input.

Consultation must be 'meaningful' – this means you must get their feedback and input, and seriously consider their proposals.

As an employer there is clear legislation concerning consulting your employees and failing to do so can result in hefty financial penalties.

All employers must inform and consult their employees on:

  • selling the business or buying a new one
  • making 20 or more redundancies in a 90 day period
  • health and safety issues

If you have more than 50 employees you may also have to:

  • consult employees on changes to your pension scheme
  • share other business information with your workforce if they request an information and consultation agreement

I would like to think that any reasonable employer would want to talk to their staff about these issues so it shouldn’t be a concern.  However, the bit that may trip you up are the timescales involved particularly in relation to redundancies.  This is why it is so important to plan any changes rather than just steaming in.

Contract of employment (or statement of employment particulars)

A contract of employment is a legally binding agreement between an employer and employee.

By law, an employer must provide anyone who’s classed as an employee (that is a whole separate conversation about who is an employee!!) with the terms of their employment in writing.

From April 2020, the law changed to say that employers now need to contain a lot more information in their ‘statement of employment particulars’ and let the employee have it on their first day of employment (it used to be within the first 2 months).

As well as a summary of the main terms of employment, such as pay and place of work, the statement now needs to include this additional information:

  • The days of the week the individual is required to work and how any variation is to be determined
  • Details of any paid leave to which the individual is entitled, other than sick pay – for example, maternity and paternity leave
  • Any mandatory training provided by the employer and any other mandatory training which the employee must pay for
  • Details of any other benefits provided by the employer that have not been set out elsewhere in the statement
  • Details of any probationary period, including any conditions and its duration

The following information can be provided in a single supplementary statement within two months of work commencing.

  • Terms as to pensions and pension schemes
  • Details of any training provided by the employer
  • A note providing further information about disciplinary and grievance procedures
  • Details of any collective agreements

A contract of employment goes beyond the basic statement of particulars and can include others terms that might be relevant.

Generally try and set out as many terms as possible in writing and give this to new employees before or when they start their job. This will help avoid uncertainty or any disputes further down the line.

For existing employees (and former employees who make a request within three months of their termination of employment) whose employment started between 30 November 1993 and 6 April 2020, they will have the right to request a statement which complies with the new rules. If such a request is made, a compliant statement must be provided within one month.

Statement of employment particulars (contracts) are key pieces of employee documentation. You can absolutely find templates online but let me know if you would like me to either check your existing documentation or provide one that is tailored to your business.


Get in contact if you would like any more information on the 3 C’s above or if you have a question on the ones I didn’t cover - Casual Workers, Constructive Dismissal 


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