Formal Capability Procedure

1.1 Oxford Brookes University (OBU) provides inclusive work practices and people policies that proactively ensure all its employees have equitable opportunities to fulfill their duties to their full potential through a culture of supportive challenge. 

2.1 This procedure provides a formal review process to address concerns related to under performance and/or attendance, where informal attempts to address those concerns under the Sickness Absence Management Policy or the Performance Management Policy have failed to result in the required improvements in attendance and/or performance. 

3.1 This procedure applies to all employees of the University, other than the Vice-Chancellor and the Registrar and Chief Operating Officer. Formal management of capability for employees in these roles would largely follow this procedure, but would be conducted by an independent Governor who has not previously had any involvement in the matter. Any appeal would similarly be heard by an independent Governor.

4.1 The formal procedure may only be invoked where it is supported by the relevant People Manager (Brookes login required). 

4.2 In exceptional circumstances it may be appropriate to progress straight to Stage Three of this procedure. This must be supported by the Chief People Officer (or, in their absence, Deputy Director, People Operations) and PVC/Director and the employee must be notified in writing of the specific reasons for this progression and the potential outcomes, including the possibility of dismissal. Progression straight to Stage Three may be appropriate where:

• Performance/attendance is due to Medical Capability (as defined in section 3.7 of the Sickness Absence Management Policy and section 4.2.1 of the Performance Management Policy), or long-term sickness absence. In this instance appropriate medical evidence will be required (e.g. Occupational Health or GP reports). 
• Performance/attendance of an employee represents a significant and demonstrable risk to a School/Department’s statutory obligations, financial viability, or fundamental operational continuity.

4.3 In all instances where Stage Three progression is triggered under section 4.2, documented evidence will be required to show that:

• Where applicable, all agreed reasonable adjustments (in accordance with the Equality Act 2010) have been fully implemented and evaluated.
• Alternative supportive measures and redeployment options have been explicitly explored and exhausted.
• The decision to bypass earlier stages is a proportionate response to the severity of the circumstances.

4.4 There will be a discussion with the appropriate full time officer in advance of any formal action being taken with regard to an employee who is an accredited Trade Union Representative.

4.5 Employees will normally be provided with five days’ notice (and no less than two working days’ notice) of hearings at every stage of this procedure, with efforts made to consider the working patterns of all parties where reasonably practicable. Employees will be notified of their right to be accompanied by a workplace colleague or Trade Union Representative. The employee must inform the hearing chair who will accompany them as soon as possible. If the companion of choice is not immediately available, the hearing can be rescheduled to a new date, normally within 5 working days to allow them to participate. In the event that the companion is consistently unavailable or unavailable within a reasonable timeframe, OBU will request that an alternative companion is identified. 

4.6 The employee should take reasonable steps to attend a hearing on the scheduled date. If they have unavoidable commitments at the chosen time which cannot be rearranged, the hearing may be rescheduled to another mutually convenient date normally within 5 working days. If the employee is still unable to attend, the chair of the hearing may decide to proceed and make a decision based on the available evidence. The employee and their representative will be informed of this decision. 

4.7 An impartial notetaker will be present, or a transcription will be made of all hearings under this procedure, in line with sections 8 in both the Sickness Absence Management Policy and the Performance Management Policy.

4.8 In line with the Equality Act 2010 employees are encouraged to disclose any disabilities that may affect the implementation of this procedure, and reasonable adjustments will be put in place to support them. For further information on the University’s commitment to creating an inclusive and accessible environment, staff can visit the Disability webpage, which includes Reasonable Adjustment Guidance (Brookes login required). 

4.9 Hearings at Stages One and Two of this procedure will be conducted by the line manager of the employee, where this is supported by the relevant People Manager (Brookes login required). Hearings at Stage Three will be conducted independently, impartially and objectively, by a senior manager with no prior involvement in the matter.  

4.10 At each stage of this procedure the employee has the right of appeal against any formal action issued up to and including dismissal. Appeals must be sent to the relevant People Manager (Brookes login required) within 10 working days of the outcome letter. The employee will be invited to attend an Appeal Hearing, in line with section 4.5 and 4.6, with an appropriate senior manager who has not previously been involved in the case. The senior manager will consider all of the written evidence, including the record of the relevant formal capability review hearing. The Appeal Hearing is not an opportunity to repeat the hearing, but to consider the basis of the appeal i.e. the reasons the employee considers the process or outcome to have been incorrect or unfair. The chair will make their decision, informing the employee of the outcome in writing within 10 working days. The outcome may be to uphold the original decision, or to substitute an alternative decision. The decision of the appeal hearing manager will be final. 

4.11 All formal warnings issued under this procedure will be held by the People Directorate in line with section 8.4 of the Performance Management Policy and section 8 of the Sickness Absence Management Policy.

Stage one

5.1 The line manager will write to the employee to invite them to attend a Formal Capability Review Hearing under Stage One of this procedure to discuss the continuing concerns with their performance/attendance, and this will: 

• Confirm the date, time and venue of the hearing, and who else will be in attendance. 
• Confirm the employee’s right to be accompanied. 
• Invite the employee to provide notification of any reasonable adjustments that they may require in order to be able to participate fully in the hearing.
• Identify and provide evidence of the areas in which the line manager considers that there is a shortfall in the employee’s work performance or levels of attendance.
• Provide evidence of informal interventions under the relevant policy.
• Provide the employee with a copy of this procedure.
• Inform the employee of the possible outcomes under this procedure.

5.2 At the hearing the line manager will outline and evidence the areas where the employee’s performance/attendance is falling below the required standard, and ask the employee to put forward any evidence and explanations, including the causes of the issues, and any mitigating circumstances. The line manager should discuss as relevant:

• Targets and expectations within a defined improvement period. For cases concerned with under performance, this would inform a new or revised Action Plan (Brookes login required). For cases concerned with sickness absence, this would include expectations for future attendance.  
• Any appropriate formal or informal training and development (e.g. a training course or coaching) to help the employee meet the targets. 
• Any health concerns, and whether a referral to Occupational Health (Brookes login required) may help to inform this procedure. 
• Any appropriate changes in working arrangements or practices. 
• In instances where the employee has disclosed a disability, any reasonable adjustments that have already been agreed, the effectiveness of these, and any further reasonable adjustments that may be required. 
• Support available from the Employee Assistance Programme (EAP) (Brookes login required). 
• Proposed monitoring and review arrangements within the improvement period. 

5.3 Within 5 working days of the hearing the line manager will issue a letter confirming the outcome(s) of the hearing. In determining the appropriate outcome(s), the manager will consider the specific circumstances of the case, including:

• The nature and seriousness of the capability concerns.
• The extent to which these have been previously raised and addressed.
• Any mitigating factors, including those relating to health or disability.
• The support, training, and/or adjustments already provided.
• The employee’s engagement with previous support and willingness to improve.
• The likelihood of achieving the required standards.

5.4 It may be appropriate at this stage to issue a Formal First Written Warning, alongside targets and expectations for improvement over a defined improvement period. Further guidance on outcomes can be found in Appendix one (Brookes login required). 

5.5 The employee should be advised that unless sufficient and sustained improvement is demonstrated by the end of the improvement period, the matter will progress to Stage Two. 

5.6 If the targets set have been met at the end of the improvement period, then the line manager will write to the employee to confirm this, and confirm that the improvements must be sustained. Where improvement has only been demonstrated over a short period (for example, only towards the end of the improvement period without good reason), it may be appropriate to extend the improvement period, e.g. by a further four to six weeks, to support the employee in sustaining the required standards.

Stage Two

5.6 If the employee has not met the targets at the end of the improvement period, or if the targets are met initially but not sustained during the time of a live warning on file, the matter will normally progress to Stage Two of this procedure, which will follow the same format as Stage One. 

5.7 The line manager will apply the same considerations set out at Stage One, including the nature and seriousness of the capability concerns, the effectiveness of support and any reasonable adjustments already provided, the employee’s engagement with the targets set, the extent and sustainability of any improvement, and the likelihood of improvement within a further reasonable timeframe. Decisions must be reasonable and proportionate in the circumstances.

5.8 It may be appropriate at this stage to issue a Formal Final Written Warning, alongside targets and expectations for improvement over a defined improvement period. Further guidance on outcomes can be found in Appendix one (Brookes login required).  

5.9 The employee should be advised that unless sufficient and sustained improvement is demonstrated by the end of the improvement period, the matter will progress to Stage Three, and may result in dismissal. 

5.10 If the targets have been met at the end of the agreed improvement period, then the line manager will write to the employee and confirm this, and confirm that the improvements must be sustained. Where improvement has only been demonstrated over a short period (for example, only towards the end of the improvement period without good reason), it may be appropriate to extend the improvement period, e.g. by a further four to six weeks, to support the employee in sustaining the required standards.

Stage Three

5.11 If the employee has not met the targets at the end of the improvement period, or if the targets are met initially but not sustained during the time of a live warning on file, or where the concerns are sufficiently serious (as described in section 4.2), the matter will normally progress to Stage Three, subject to the relevant approval. Stage Three will follow the same format as Stages One and Two, but will be heard by a senior manager with no prior involvement in the matter.

5.12 The senior manager will consider all of the evidence relating to the case, including input and evidence from the line manager to explain how the employee has not met the targets set following the Stage Two hearing. The senior manager will consider:

• Whether the process to date has been fair, reasonable and proportionate.
• Any new evidence or mitigating circumstances put forward by the employee at the hearing. 
• The extent and sustainability of any improvement.
• The employee's engagement with previous actions and support.
• The possibility of redeployment to another role. 

5.13 The senior manager will determine an appropriate outcome, which may be either of the following:

• No further formal action or a further review period, where there are concerns about the fairness, consistency, or procedural integrity of the process (or in exceptional circumstances where there is clear, objective evidence that a further period of time and support is very likely to result in sustained improvement, and where this has not already been reasonably exhausted).
• Dismissal with notice, on the grounds of capability where there has been insufficient improvement despite appropriate support and prior warnings, and no reasonable alternative is available, including redeployment or ill-health retirement as detailed in Appendix one (Brookes login required).  

5.15 The outcome will be confirmed in writing as per the previous stages of this procedure, confirming the employee’s right of appeal (see section 4.10).