Capability procedure

Purpose

This procedure is designed to support staff and managers in dealing with problems regarding performance which may arise from time to time and which leads to the employee not fulfilling the expected requirements of the role or could arise from the employee’s inability to fully perform the role. It aims to:

  • ensure that any concerns about an employee’s ability to achieve acceptable standards of work are addressed effectively through a clear and supportive procedure;
  • ensure that supervision, training, counselling and support measures are deployed appropriately to help employees to achieve acceptable standards of work and
  • provide a clear procedure for the termination of employment in cases where it does not prove possible to secure a satisfactory and acceptable level of performance.

Where poor performance is due to a failure to maintain adequate standards of behaviour rather than a lack of skills or application, it should be dealt with through the disciplinary procedure. Capability is defined for the purposes of this procedure as all matters related to an employee’s skills, aptitudes or competences and their application.

Where poor performance is linked partly or wholly to a qualifying disability under the Disability Discrimination Act, the requirements of that Act for reasonable adjustments to the workplace or the job will be taken into account. Where poor performance is linked partly or wholly to medical problems, the University’s procedures for dealing with absence from work due to ill-health should be used as appropriate.

This procedure applies to all employees of the University, other than the Vice-Chancellor and the Registrar.

General provisions

Setting performance standards:

Employees have a contractual responsibility to achieve an acceptable level of performance at work and will be supported and encouraged to reach that level. Managers should set realistic and achievable standards consistent with the employee’s contract and the university’s policy on academic workload planning. These should ensure that employees understand what those standards imply in terms of the quality and quantity of work and the time and costs associated with the expected outputs. Any shortfalls in performance should be discussed promptly with the employee concerned and the causes of the shortfall identified. Consideration should be given to whether it is due to inadequate training, supervision or guidance and if appropriate measures should be taken to provide additional support.

Employee induction:

Please follow the Induction policy.

Personal development and review

The University has established a structured approach to personal review which operates on an annual cycle. New employees should be given appropriate targets and support training on a shorter time scale, such that managers and employees alike can be satisfied that adequate progress is being made towards the expected performance levels. The PDR is not an appropriate meeting to bring up performance concerns for the first time, however, it is wholly appropriate to refer to on-going performance issues during such a meeting although the PDR is not a performance management meeting.

Regular one to one meetings

Line managers should meet on a regularly with employees on an individual basis to discuss performance, current work and current work issues, plus any other relevant topics.  Poor performance should be raised at these meetings or at an earlier meeting if a one tone is not imminent.  How regular a one to one meeting is held is for the line manager and member of staff to decide but where there are performance concerns the regularity of these meetings is likely to increase for the individual concerned.

Principles of the capability procedure

Problems of poor performance should be dealt with promptly and equitably.At each point in the procedure, the employee will be given a full explanation of the perceived weaknesses or deficiencies in performance.

An employee has the right to be accompanied by a fellow employee, friend or trade union representative at each stage of the formal procedure.

Documentation relating to the use of this procedure will be treated as confidential and will only be made available to those directly involved.

The Director or Deputy Director of Human Resources will be informed by the Link HR Business Partner about the progress of any case which reaches the formal procedure and may offer advice and/or guidance in order to maintain consistency and fairness in the application of the regulations.

In cases where capability is affected by ill health and the employee does not wish to take sick leave, they should advise their line manager of the health problem. The line manager should consider whether it is possible to adjust the employee’s workload and/or working conditions in the light of these problems.

Throughout the procedure, the work of the employee will be considered in the light of any adjustments that have been agreed by their manager.

If an employee is unable by reason of ill health to perform their duties satisfactorily, allowing for any adjustments that may have been agreed with their manager, they are required to take sick leave. Presenting themselves for work commits the employee to performing their duties to an acceptable standard.

Mediation

If during the capability process both parties feel that there would be value in seeking mediation then this could be considered.

  • The University has a number of staff trained as counsellors who are available to mediate between employees with a view to identifying a mutually acceptable resolution of the issues involved. Requests for the involvement of a counsellor should be made to the Link HR Manager.
  • Mediators will use their skills to assist, but will not dictate, monitor or enforce any agreement. A record of the agreement will only be kept if both parties consent to it.

Dealing informally with issues of capability

When a line manager has concerns about the performance of a member of staff, they may wish initially to consult more senior colleagues and the link HR Manager about the most appropriate means of dealing with the perceived problem.

The line manager will then:

  • let the employee know verbally the nature of the perceived problems and the date and time of a meeting to discuss how they should be addressed and this should be confirmed in writing;
  • at that meeting, explain why the expected standards of performance do not appear to have been met, and identify occasions when deficiencies have occurred and define the expected standard of performance;
  • endeavour to establish the reasons for the unsatisfactory level of performance, taking account of all the factors which might have had an effect on the employee’s performance, including the volume of work, the available resources, training, personal matters, ill health and changes in management or working practices;
  • the employee’s views and perception of all the matters involved should be taken fully into account, and any additional or alternative evidence considered in good faith;
  • At this point the meeting should end whilst the line manager considers the mitigating evidence presented.  If the line manager still has concerns after considering the mitigating evidence then the meeting should be reconvened and an action plan set and
  • seek to establish an agreed programme to address the problems, which may involve additional supervisory support, further training, additional resources, organisational changes, changes to workload, or where a personal issue is identified, counselling or a period of special leave. A clear monitoring and feedback review procedure must also be agreed.

Before agreeing a programme of action, the employee may wish to consult with a trade union representative or a friend. The manager and the employee may agree mutually to involve others in reaching a mediated agreement on a programme of action.

A programme of remedial action should set targets and dates for meeting objectives a competent holder of the post could reasonably be expected to meet. For most administrative and organisational issues, targets of between one week and three months duration will be the norm, but the nature of academic work patterns and job requirements are such that longer–term targets may need to be set. The consequences of not meeting the required standards within these time-scales should be outlined. The programme will also include details of when monitoring meetings will be held and how standards will be re-assessed. The programme will normally be a written document, a copy of which is to be retained by the manager and the employee. Where a trade union representative has been involved, they will also receive a copy of the programme.

If agreement cannot be reached, the line manager should consult with the link HR Manager for advice. The line manager may then impose a programme of action or refer the matter immediately to the formal stages of the procedure. The employee may have recourse to stage two of the grievance procedure if they consider the programme to be unacceptable.

If the necessary improvement in performance is achieved within the set time-scale, no further action will be necessary and all copies of the documentation involved should be forwarded to the link HR Manager for retention on the employee’s personnel file for the following twelve months. At the end of this period they will be removed.

If performance continues to be unsatisfactory, the manager should initiate the formal procedure set out below, in consultation with the link HR Manager. In cases where the manager is confident that an employee’s performance, whilst not completely satisfactory, will reach the required level within a reasonable time period, no further action need be taken.

Formal capability procedure

The line manager having sought advice from the link HR Manager will verbally inform the employee as to the aspects of their performance that are considered to be unsatisfactory, and will arrange a meeting to discuss how they should be addressed and this will be followed up in writing. At least five working days notice of the meeting should be given, and the employee may be accompanied by a fellow employee, friend or trade union representative. The employee may ask for this meeting to be postponed for up to a further ten working days if the person who they wish to accompany them is not available on the date proposed.

At the meeting, the manager will:

  • remind the employee that this is a formal step in the University’s capability procedure;
  • indicate how the expected performance standards are not being met and what the expected performance standard is;
  • endeavour through discussion to establish the causes for the continued unsatisfactory performance and
  • invite the employee to put forward evidence and explanation in their support.

The only evidence admissible under the Capability Procedure is evidence from an identified individual regarding matters of which they have first-hand experience. Hearsay evidence is not acceptable, whatever its source. It is expected that individuals who have provided evidence will normally be available to answer questions, except in circumstances where they are prevented by factors beyond their control.

The manager may decide to adjourn to gather further information.  In such cases, subsequent meetings will follow the procedure as above:

  • the areas in which performance has been deficient;
  • specific individual targets or standards that a competent holder of the post could reasonably be expected to meet and the dates by which they should be achieved;
  • monitoring and review arrangements;
  • any changes in working arrangements and practices designed to support the achievement of the required standard of performance;
  • any further training or personal development measures that will be undertaken, including counselling or advice from an external source and
  • any further steps and possible sanctions that may result from a failure to meet the required standards.
  • any further steps and possible sanctions that may result from a failure to meet the required standards.

The option of a transfer to another post may be considered at the meeting where this might offer an effective means of securing an appropriate level of performance and/or contribution from the employee concerned. The details of the discussion of this option and any outcome should be covered in the letter.

Subsequent performance will be monitored as set out in the letter, and periodically reviewed in meetings between the employee and the manager. The manager will keep notes of these meetings detailing the assessment of progress and any further agreed actions. A copy of these notes will be forwarded to the employee and their representative.

If performance improves within the agreed time-scale, no further action is necessary and all copies of the documentation should be sent to the link HR Manager for retention on the employee’s personnel file for 18 months. At the end of this period it will be removed.

Formal capability review

Before commencing the formal part of the capability procedure, authorisation for this action must have been sought and granted by the Dean/Director.  If an employee’s performance over the agreed time-scale continues to fall short of the required standard, the relevant Dean or Director, in consultation with the link HR Manager, will refer the case to a formal Capability Review Panel. The Panel will consist of either the Director or Deputy Director of Human Resources (if either of them has been involved in the case at an earlier stage they will not be eligible to be a member of the review panel) and another Dean or Director.

The Directorate of Human Resources will inform the employee in writing that the case has been referred to a Review Panel. Other details to include:

  • date, time and venue of the Panel, giving a minimum of ten working days’ notice;
  • names and job title of the Panel members and
  • the right to be accompanied by a fellow employee, friend or trade union representative.

The letter of notification will also identify the areas in which the line manager considers that performance continues to fall short of the expected standards and the supporting evidence and of the possible outcomes from the Review Panel including compulsory transfer to another post and dismissal.

The Panel may be postponed for up to a further ten days by mutual agreement.

The Panel will:

  • take evidence from the manager and the employee concerning the deficiencies in performance and the steps that have been taken to secure improvements;
  • review the outcomes of any training that has been undertaken to secure an improvement in performance;
  • review the written documentation from the intermediate monitoring meetings;
  • call for any other evidence which they feel is necessary to establish whether the employee is failing to meet the reasonable expectations of performance for the post;
  • if the failure to meet the expectations of the post may have been influenced by illness or disability the Panel will consider whether all appropriate adjustments have been made and
  • the employee and the manager may call witnesses and the panel, the manager and the employee may all ask questions of these witnesses.

The Panel may take one or more of the following courses of action, according to the circumstances of the case:

  • take no further action;
  • in consultation with the manager they may set further performance targets appropriate to the post and to the deficiencies that have been identified, setting a time period in which the improvement in performance is required. This will normally be between one and three months, but for members of academic staff time-scales related to both teaching and research outputs may necessarily be longer;
  • recommend to the Dean/Director changes to the working practices, working arrangements and patterns of work for either the individual employee, and/or the department in which he/she is employed. Detail support and training provisions that are available to the employee concerned;
  • recommend to the Redeployment Panel and the SMT consideration of the scope for redeployment to a post elsewhere in the University that would be appropriate to the skills and capabilities of the employee. In cases where the incapability is not due to sickness, this redeployment will be governed by the University’s policy “ Principles to be Adopted in Dealing with Staffing Changes”, except that the redeployment could be to a post at a lower salary and on different terms and conditions of service. Where a recommendation for redeployment is made, the period during which the case should be considered will be set;
  • recommend to the Redeployment Panel and the SMT consideration of the scope for redeployment to a post elsewhere in the University that would be appropriate to the skills and capabilities of the employee. In cases where the incapability is due to sickness, this redeployment will be on protected salary and conditions of service and the procedure to be used will be governed by the University’s policy “Principles to be Adopted in Dealing with Staffing Changes.” Where a recommendation for redeployment is made, the period during which the case should be considered will be set;
  • recommend dismissal in cases where redeployment is not a realistic option and/or
  • in cases where incapability is due to ill-health, require the employee to take sick leave until certified fit to return to work by the Occupational Health Advisor.

Written Confirmation of the Decision of a Capability Review Panel

  • The Director of Human Resources or his/her nominee will inform the employee, in writing, of the decision of a capability review panel within five working days of the panel. The letter will cover:
    • the issues;
    • any conclusion that has been proposed and the reasons for the conclusion;
    • any remedial action required of the employee and the consequences of any recurrence of unsatisfactory capability, including any dates for review and
    • the procedure for exercising the employee’s right of appeal.
  • Records of formal capability action will be held by the Directorate of Human Resources.

Appeals against decisions short of dismissal

A decision of the panel (other than a recommendation to dismiss) may be appealed to the Registrar. Appeals must be lodged with the Director of Human Resources within five working days of the decision of the panel, and will be considered at a mutually convenient date within 15 working days of receipt.

The Registrar will consider all the written evidence, including the record of the panel hearing. The employee, their representative or friend and the chair of the panel will be asked to meet together with the Registrar to make a submission in support of their respective cases.

The or Registrar may confirm the decision of the panel, substitute an alternative decision, or ask the Director of Human Resources to convene either the same panel or a new panel to re-consider the case.

Dismissal

The employee will be notified of this recommendation in writing by the Director of Human Resources (or their nominee). The recommendation will be submitted to the Vice-Chancellor or the nominated deputy, and the employee will be invited to make representations to the Vice-Chancellor, either in writing or orally before the Vice-Chancellor reaches a decision on the recommendation. The employee has five working days from the notification of the Capability Panel’s recommendation to notify the Director of Human Resources if he/she wishes to make representations, and the representations will be made within a further ten working days from the date of the notification.

In order to come to a decision on the recommendation, the Vice-Chancellor or the nominated deputy will receive the full set of documentation that was available to the members of the Capability Panel, together with any written representations from the employee. If the employee has opted to make oral representations, they will be made through the procedure set out in Appendix 1. Supplementary information may be sought from any of the parties, and any such information shall also be communicated to the employee and the Director of Human Resources.

If the recommendation for dismissal is approved, the employee will be notified and informed of the right of appeal. If an appeal is lodged the dismissal does not take effect until the appeal has been heard, but the employee will be suspended without pay from the date of the letter of notification of the Vice-Chancellor’s decision. In the event of a successful appeal any pay that has been withheld will be reinstated.

Appeals

  • An employee has a right of appeal against a decision made under the formal Capability Procedure.
  • The right of appeal must be exercised within 10 working days of receipt of the letter of confirmation of capability action.
  • The appeal, stating the grounds on which it is made, should be sent in writing to the Director of Human Resources.
  • An appeal against a decision by the Vice-Chancellor or the nominated deputy to dismiss will be heard by an Appeals Committee, which will consist of one independent Governor of the University, and two others who are either Deans, Directors or from the Senior Management Team, nominated by the Director of Human Resources. None of the participants will have previously been involved in the case. Decisions made on appeal shall be final and the employee will be informed in writing within five days after the appeal hearing. The Committee will be chaired by the Governor member.
  • The Appeals Committee will hear any appeal within 20 working days of the appeal being lodged, unless otherwise agreed in writing between the parties.
  • The decision of the appeal body (communicated in writing to the employee) shall be final within the procedures of the University.
  • In all cases of appeal the employee may appear in person and with a fellow employee, friend or a trade union representative.
  • The procedure for the appeal hearing is set out in Appendix 2.

Appendices

  • Appendix 1: Procedure for making oral representations to the Vice-Chancellor against a recommendation for dismissal

  • Appendix 2: Appeal at the final stage of the Capability Procedure

 

Updated March 2012