Back To Basics: What Is The Real Difference Between Misconduct And Incapacity?

Managers and even Employee Relations practitioners have long had difficulty deciding what procedural route to follow or what action to take when an employee's behaviour does not fall easily into the definition of either misconduct or poor performance, ill health or injury (incapacity). Traditionally we have talked about fault and no-fault behaviour, but there is a growing frequency of employee behaviour in the workplace which does not fit neatly into one of these two categories. For example, what can be done about an employee whose performance is exemplary but who just does not “fit in”? What would be the appropriate action and procedure to follow in such a case? 

On 14 May 2025 Ingrid Lewin will present a webinar on this challenging topic, discussing seminal case law and the extent to which the new draft Code of Good Practice: Dismissal attempts to resolve the confusion.