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The battle against capability and conduct procedures

Some industries use slightly modified disciplinary procedures when dealing with capability and conduct. However does this give rise to employers being able to freely choose which procedure to use with which employee?

This issue was dealt with in the Court of Appeal in Welch National Opera Ltd v Johnson which looked at the interplay of two disciplinary procedures, following the dismissal of the principal oboist in the company’s orchestra.


Mr Johnston had been principal oboist since 1974, but difficulties arose between him and the opera’s musical director, which lead to criticisms of Mr Johnston’s performance. The company had two disciplinary procedures, a standard procedure, and a “poor artistic performance” procedure agreed with the Musicians Union. The latter procedure involved the individual to undergo two auditions prior to a decision of dismissal being made. The procedure also specified that unless a musician failed both auditions, the sanction of dismissal was not appropriate. 

Instead of implementing the “poor artistic performance” procedure against Mr Johnson the company decided to use the standard disciplinary procedure on the basis that the issue was relating to his ability to perform as part of an ensemble, which did not have to be assessed through individual auditions. Further they opted not to follow the complete standard procedure which included providing for a series or oral and written warning to be given, but proceeded to a final hearing, on the basis that this would reduce the stress on Mr Johnson.

Mr Johnston was dismissed and claimed unfair dismissal. He was unsuccessful in the Employment Tribunal (ET) who took the view that the employer had been reasonable in choosing to follow its standard disciplinary procedure because the artistic performance procedure was not well suited to dealing with the specific problem in question. They accepted that the reason for modifying the standard procedure was to alleviate the stress placed on Mr Johnson.

The Employment Appeals Tribunal (EAT) and Court of Appeal

The EAT, and the Court of Appeal, disagreed with the ET. They held it was clear from the contractual documents that the standard procedure did not apply in cases of poor artistic performance, and the procedure followed by the company was inadequate for a case of poor performance.


The moral of the story is that employers should ensure:

1.    Policies and procedures which are drafted to deal with specific issues, remain flexible enough to allow for unforeseen circumstances and

2.    Different approaches are taken when dealing with conduct and capability issues: treating a performance issue as if it were misconduct is, generally, a recipe for procedural disaster.

Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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