CAPABILITY AND POOR PERFORMANCE PROCEDURE

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1 CAPABILITY AND POOR PERFORMANCE PROCEDURE 1. Introduction 1.1 Staff and managers are jointly responsible for ensuring that satisfactory performance standards are maintained at all times. Acceptable standards will evolve over time as knowledge, skills and competencies develop. The capability and performance expectations of an employee new to a post will not be the same as for someone who has been in post for some time. The appraisal system is designed to help staff and managers work together to ensure that acceptable capabilities and performance standards are met by agreeing appropriate objectives and clear role expectations, identifying necessary learning and developmental support, as well as regular communication and feedback. A capability issue (or incapability) is defined as a failure on the part of an employee to reach and maintain a satisfactory standard (including, where appropriate, professional/academic standards) in their work due to inadequate skills, knowledge and competencies or as a result of health problems leading to a high level of sickness absence. This may typically occur when technologies or processes change and the need for adaptation, despite training and support, proves to be beyond the capability of an individual. Poor performance is a failure by an employee to reach and maintain a satisfactory standard in their work which their skills, knowledge and capabilities mean they are capable of attaining. This may manifest itself in a variety of ways for example, a failure to follow appropriate procedures, guidelines, policies and work practices; carelessness and inattentiveness; failure to meet expected and agreed standards of delivery; and inappropriate behaviours. Poor performance is different from incapability in that it results from conduct over which the individual has a choice. Issues of capability and poor performance will be most evident when an individual fails to deliver outputs of the quality or quantity required. 1.2 Often there will be no clear separation between capability and poor performance as the reason for failing to achieve satisfactory work standards. Likewise, there may be other issues that are incompatible with satisfactory work standards which do not fit comfortably within the bracket of capability and poor performance for example, misconduct. Such issues should be dealt with under the disciplinary procedure. 1.3 A range of factors may help explain or mitigate incapability and poor performance for example, an employee s health and wellbeing (including drugs and alcohol problems), stress, workplace bullying and harassment. Managers should be alert to possible contributory factors and where 1

2 identified, or suspected, should discuss the matter with Human Resources Directorate. 1.4 Where employees are subject to this procedure the normal staff appraisal cycle should continue to apply. 1.5 This procedure should not normally be applied during the probationary period, which is covered by separate arrangements at the interim and final probation report stages. 2. Informal Review 2.1 Managers have a duty to bring any concerns about an individual s capabilities and performance promptly to their attention. Delays in doing so will complicate remedial actions. Managers should discuss their concerns informally with staff in the first instance with the aim of the exploring the reasons for the shortcomings and how they can be redressed. 2.2 In discussing capability and performance issues informally managers should ensure the following: That the individual has explained to them at a one-to-one meeting the ways in which they have failed to meet satisfactory work standards. Clear examples of deficiencies must be given. That the reasons for the deficiencies are explored with the individual. It is important that the individual has a chance to identify any factors that might explain their capability and performance shortcomings and the measures that they think may help remedy them. That the individual clearly understands the standards that are expected. That a reasonable period of time is given for improvement. This will depend on the circumstances but is unlikely to be less than 2 months or more than 6 months (for academic staff Managers will need to give consideration to the point in the academic year when determining an appropriate time period to demonstrate improvement e.g. there may be insufficient time in term 3 to demonstrate improvements initiated in term 2). That the individual understands that the meeting and discussion represent neither a formal warning nor a formal phase of the University s capability and poor performance procedure. 2.3 Following the meeting the manager should write to the individual summarising the discussion (including the employee s explanation for the alleged poor performance), the remedial/support actions to be taken, the nature of the improvement required (taking account of SMART 1 objectives), the date of any further review meetings, and the potential next step in the event that capability and performance shortcomings are not satisfactorily addressed (see 2.4 below). 1 Most commonly SMART is an acronym for: (S)pecific; (M)easurable; (A)chievable; (R)elevant; (T)imely. 2

3 2.4 Although the meeting represents an informal stage in trying to resolve a capability and poor performance issue, the letter should make clear to the individual that should they fail to address shortcomings satisfactorily their performance will be recorded as Unsatisfactory and formal proceedings will be initiated under the Capability and Poor Performance Procedure. 2.5 Appendix 1 gives guidance on the kind of remedial measures that may be appropriate in addressing incapability and poor performance issues at an informal stage. 2.6 Managers can extend the informal review period when genuine and substantial progress is being made towards achieving satisfactory work standards. 3. Formal Stage An individual who has failed to meet a satisfactory work standard at the expiry of an informal review period should be written to requiring them to attend a meeting to discuss matters further. The meeting should be held without unreasonable delay after the expiry of the informal review period and the individual should have at least five working days notice in order to prepare for it. The letter should include the following: The time and venue of the meeting. An explanation of its purpose and that it is a Formal Stage 1 meeting under the Capability and Poor Performance Procedure. Clear examples of the ways in which the individual s capabilities and/or performance have failed to meet a satisfactory standard. The statement: Your performance is considered to be Unsatisfactory and therefore falls short of some or all of the requirements of the role. Notification that the individual has the right to be accompanied by a work colleague, friend or trades union representative/official (see appendix 2). A copy of the Capability and Poor Performance Procedure. 3.2 The manager should invite a member of the Human Resources Directorate to attend the meeting as well as a formal note taker (exceptionally, the Human Resources Directorate staff member can act as note taker). 3.3 The meeting will normally be held by the line manager or someone more senior within the Faculty or Directorate with knowledge and oversight of the individual s work. Where the latter is the case, the line manager will be called as a witness. The individual will be notified in advance of all witnesses and other individuals attending the meeting. 3.4 The primary aims of the review meeting are to agree the changes and support needed to allow an individual to reach a satisfactory work standard and at the same time make clear the consequences of not doing so. At the meeting the manager should 3

4 Inform the individual that the meeting represents a formal stage in the University s procedures for handling capability and poor performance. Explain the precise areas where capability and performance are judged unsatisfactory. Ensure that the individual clearly understands the standards that are expected. Seek explanations from the individual for why their work standard is unsatisfactory (the individual may not necessarily agree that it is. In such circumstances the manager should make clear that it is for management to determine what are and are not satisfactory work standards). Invite the employee to identify the kinds of reasonable support that might help address their unsatisfactory work standards and agree the actual measures to be put in place. Explain the timescale within which the individual will be expected to achieve satisfactory work standards: o For Support and non-teaching Staff this should not normally exceed three months from the date of the meeting. o For Teaching Staff this should be a minimum of one full term, but should not exceed two terms.(for academic staff Managers will need to give consideration to the point in the academic year when determining an appropriate time period to demonstrate improvement e.g. there may be insufficient time in term 3 to demonstrate improvements initiated in term 2). 3.5 Following the meeting the manager should write to the individual summarising the discussion (including the employee s explanation for the alleged poor performance), the remedial/support actions to be taken, the nature of the improvement required (taking account of SMART objectives), the date of interim and final review meetings, and the potential next step in the event that capability and performance shortcomings are not satisfactorily addressed (see 3.6 below). A copy of the letter should be sent to the Human Resources Directorate for retention on the individual s personal file. This will be disregarded after one year of satisfactory performance. 3.6 The letter should include the following paragraph; This letter should be regarded as a formal warning that the University has serious concerns about your work performance. The review period you are about to commence constitutes the first of three formal stages of the University s procedure for dealing with capability and performance issues. You may access this procedure on the Human Resources web pages at 3.7 Managers can chose to explore alternative options such as extending the formal review period when genuine and substantial progress is being made towards achieving satisfactory work standards transferring an individual to another post changing their duties and working practices 4

5 3.8 If work standards have reached a satisfactory level by the end of the formal review period (including any extension to it) a final review meeting should be held with the member of staff to confirm this. This should be followed up by a letter stating that the requirements of the review period have been met and that no further action will be taken under the formal procedure while performance remains satisfactory. The letter should include a statement that in the event of any further evidence of unsatisfactory work performance in your present post you should be aware that you will be placed immediately into stage 2 of the Formal Review Process. A copy of this letter should be sent to the Human Resources Directorate for retention on the individual s personal file. This will be disregarded after one year of satisfactory performance. 4. Formal Stage An individual who has failed to meet a satisfactory work standard at the expiry of the first formal review period or who has previously been subject to a Formal Stage 1 review in the same post should be written to requiring them to attend a further meeting to discuss matters. The meeting should be held without unreasonable delay after the expiry of the first formal review period and the individual should have at least five working days notice in order to prepare for it. The letter should address the same points set out at Paragraphs 3.2 to 3.5 apply in respect to the second review meeting. 4.3 The letter should include the following paragraph : This letter should be regarded as a formal warning that you are now entering the second formal stage of the University s procedure for dealing with capability and performance issues. You may wish to access this procedure on the Human Resources web pages at If a satisfactory level of performance has not been achieved by the date of the final review meeting a hearing will be convened under Stage 3 of the procedure. This may result in a recommendation for dismissal. 4.4 Paragraphs 3.7 and 3.8 continue to apply. 5 Formal Stage An individual who has failed to meet a satisfactory work standard at the expiry of the final formal review period should be written to requiring them to attend a further meeting. The meeting should be held without unreasonable delay after the expiry of the second formal review period and the individual should have at least five days notice in order to prepare for it. The letter should address the same points set out at In the event that none of the options at paragraph 3.7 apply, the individual should be told at the meeting that a recommendation will be made to the 5

6 Director of Human Resources to convene a formal hearing where dismissal may ensue. 5.3 Arranging the Hearing The hearing will be chaired by a Deputy-Vice Chancellor not directly responsible for managing the Faculty or Directorate, or the Secretary and Registrar. An appropriate Human Resources Directorate representative will also attend to advise on procedural matters. A note taker should also attend (exceptionally, the Human Resources Directorate staff member can act as note taker). 5.4 The hearing will give the individual the opportunity to respond to the issues raised against them. The evidence to be considered at the hearing will include:- The written material considered at the Formal Stage 1 and Formal Stage 2 review meetings. Verbal Testimony from managers involved in the formal stage meetings to date. Any written statement or material presented by the employee. 5.5 The hearing will be arranged by the Human Resources Directorate as soon as possible after notification from the Faculty/Directorate, and normally within 21 days. Hearings may be convened at any time of the year other than on statutory holidays and weekends (unless there is mutual agreement to do so). The individual will have at least five working days notice of the hearing. 5.6 The employee will be written to giving notice of the intention to hold a hearing to investigate issues of capability and poor performance. The letter should include:- The issues under review The date, time and place of the hearing Reference to the employee s right to be accompanied by a work colleague, friend or trades union representative/official A copy of the capability and poor performance procedure Copies of all written documents submitted to the panel An invitation to provide a written statement or other material for consideration at the hearing, with a requirement that this should be submitted at least 2 days in advance of the hearing. A statement advising the employee that a possible outcome of the hearing may be a recommendation to the Vice Chancellor that they be dismissed. 5.7 Holding the Hearing The Chair of the meeting will explain the procedure to be followed. This will include: Ensuring everyone has received the relevant papers. 6

7 If the individual is unaccompanied, establishing that they have understood that they had a right to be accompanied. Setting out the issues under consideration. Asking Faculty/Office management to present their case against the individual with reference to documentary evidence submitted. Giving the individual the reasonable opportunity: o To question any statement made or the content of documentary evidence. This includes asking questions and receiving appropriate answers. o To make an oral presentation. o To sum up and to state any mitigating factors or circumstances. The Chair is responsible for clarifying any issues which they consider relevant to the case but which not have been raised by either party. They are also responsible for taking into account any potentially mitigating circumstances, including the previous work record of the individual. The Chair may adjourn the meeting at their own discretion to allow for reasonable consultation with advisors or of records. 5.8 A full note of the hearing will be made and retained. A copy will be made available to the individual and their representative if requested. Records and papers will be kept confidentially by Human Resources Directorate in accordance with the requirements of the Data Protection Act, Investigating members of staff may, at any stage consult with the University s legal advisers for specific advice about the case. No sensitive personal information will be shared without consent The Chair s decision should be communicated in writing to the individual within three working days of the meeting. It should not be communicated immediately after the meeting. The Chair may choose to recommend dismissal or reject the case. In the event of the latter, options they may wish to consider include recommending redeployment to another Faculty or Directorate, transfer away from an existing manager where they believe the manager is a material factor in the case, to set targets for a further review period etc. This list is not intended to be exhaustive Dismissal may be recommended if there is clear evidence of incapability and poor performance without mitigating circumstances. Mitigating circumstances might include ill-health issues, line management failures, or significant procedural irregularities In the event of a recommendation for dismissal, the Chair of the Investigatory Hearing will present to the Vice-Chancellor (or in their absence an authorised nominee) a report of all the relevant facts justifying a recommendation for dismissal Dismissal will generally be with notice. Recommendations to dismiss without notice should first of all be raised with the Director of Human Resources. 7

8 5.13 Where a recommendation for dismissal is made, the Vice-Chancellor will normally see the individual before confirming or rejecting the recommendation. Occasionally this may have to be delegated to a Deputy Vice-Chancellor, the Secretary and Registrar or the Director of Human Resources. The individual has the right to be accompanied by a colleague or trades union representative at such meetings. 6. Appeals 6.1 An employee has the right to appeal against dismissal. The procedure to be followed is set out at appendix 3, Appeals against Dismissal for Reasons other than Matters of Discipline. 8

9 APPENDIX 1 GUIDANCE ON HANDLING CAPABILITY AND POOR PERFORMANCE AT THE INFORMAL STAGE 1. INFORMAL DISCUSSIONS AND INVESTIGATION 1.1 It is important for managers to spend time regularly with their staff to discuss what is expected of them, what support they may need and to review outcomes and provide feedback. Where problems of poor performance or capability arise these should always be dealt with informally in the first instance through such discussions. 1.2 The manager should always be looking out for any underlying causes of the problem which need to be addressed. These might include:- disability or ill health, whether continuous or intermittent; changes in duties and/or skills requirements; changes in workplace circumstances or location; personal or domestic circumstances; apparent dependence upon alcohol or other addictive substances. 1.3 Where there are any underlying problems it is most important to explore appropriate options for positive action as set out in Section 2 below. It will usually be desirable to consult more senior managers and Human Resources Directorate colleagues before coming to firm conclusions on these options. 1.4 Remedies for perceived incapability must not be predetermined at this stage but should follow from a detailed discussion with the member of staff concerned. 2 REMEDIAL PROPOSALS 2.1 If frequent sickness absence is the cause of the problem, the matter should normally be referred to the Human Resources Directorate for onward reference to the occupational health section. Further meetings may be necessary between the employee and: the University's Medical Adviser to secure specialist professional advice on the employee's health and ability and suitability for present or alternative duties; Human Resources Adviser(s) and manager(s) to identify potential for redeployment to alternative duties more suited to the individual's capabilities. Human Resources Adviser(s) to clarify conditions applying to retirement on the grounds of ill health; 9

10 2.2 If changes in duties and/or skills requirements are a cause, managers should consider whether: it would be sensible to reverse or modify any changes in duties the employee should receive further training and\or guidance in the new duties; the employee should be redeployed to another post where duties are more compatible with his/her skills and ability; Human Resources Directorate should be consulted with a view to considering voluntary or compulsory severance from employment. 2.3 If changes of location are identified as a cause managers may consider further relocation of the employee, in consultation with Human Resources Directorate. 2.4 If personal or domestic circumstances appear to be a factor managers will need to be sensitive, whilst not overlooking the need for the employee to meet required work standards. Consideration may be given to: the provision of an "open door" for discussion and/or counselling when needed; the reallocation of duties and/or workloads whilst a stressful period is accommodated; agreement to more flexible work patterns or reduced working hours for limited period, this may in some cases involve commensurate reduction in earnings; granting of annual leave at short notice or of special leave (with or without pay according to prevailing circumstances and University practice). 2.5 If it appears that the employee may be dependent upon alcohol or a prescribed addictive substance managers must discuss the problem with the Director of Human Resources or his/her nominee, who may refer the case onward to the occupational health advisers. 2.6 In all cases where remedial action is proposed it should be designed to secure improvements in capabilities and service delivery within a foreseeable and reasonable timescale. The objective should be to attempt to achieve this with the support and co-operation of the employee concerned. 2.7 The overriding objective should be to seek to work with the employee to ensure that a satisfactory level of performance is restored and to offer such help and guidance as is necessary to achieve this end. 10

11 APPENDIX 2 GUIDANCE ON AN EMPLOYEE S RIGHT TO BE ACCOMPANIED AT A MEETING The following is from the ACAS Code of Practice, Disciplinary and Grievance Procedures, clauses 15 and 16. To exercise the statutory right to be accompanied workers must make a reasonable request. What is reasonable will depend on the circumstances of each individual case. However, it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing nor would it be reasonable for a worker to ask to be accompanied by a companion from a remote geographical location if someone suitable and willing was available on site. The companion should be allowed to address the hearing to put and sum up the worker s case, respond on behalf of the worker to any views expressed at the meeting and confer with the worker during the hearing. The companion does not, however, have the right to answer questions on the worker s behalf, address the hearing if the worker does not wish it or prevent the employer from explaining their case. 11

12 APPENDIX 3 APPEALS AGAINST DISMISSAL FOR REASONS OTHER THAN MATTERS OF DISCIPLINE Court Appeals Committee established under Section 48 of the Memorandum and Articles of Association Procedure 1 An appeal against dismissal for reasons other than matters of discipline (eg redundancy) shall be heard by a Court Appeals Committee comprising three members of Court, one of whom shall be a staff Governor. 2 The appellant must submit an appeal to the University Secretary, setting out the grounds for the appeal no later than 21 Calendar days from the date of the despatch of the letter informing him\her of the termination of employment. The application must enclose all documents upon which he\she wishes to reply, at any hearing before the Appeals Committee. 3 The appellant will be given 10 calendar days notice of the date of the hearing commencing from the date of despatch of written notice. 4 In the event that the appellant is, for good reasons, unable to attend on the stated date, and notifies the University in writing without delay, the University shall attempt to find another mutually convenient date. If such a date cannot be found, the University will give the appellant not less than 10 days notice of a further and final date. 5 The appellant may apply for an adjournment of the hearing if he\she is unable to attend for reasons beyond his\her control provided such application is made at the earliest possible opportunity and supported by documentary evidence including, where relevant, a medical certificate. 6 The hearing will be held in private. The appellant may be accompanied by one other person. 7 During the hearing: 1. The appellant may present his case to the Committee. 2. The Committee members may ask questions at any time. 3. The Committee members may wish to interview other relevant persons to the background of the case. 4. The appellant will be present throughout the hearing save when the Committee considers its decision. 5. The appellant may ask questions of any other persons called to the hearing by the Committee. 6. When the Committee has completed the interviews, the appellant may address the Committee if he or she so wishes. 12

13 7. At the end of the hearing, the appellant will withdraw and the Committee will consider its decision in private. 8. The decision of the panel will be sent to the appellant in writing within 10 calendar days of the hearing. 9. The Secretary of the Committee will keep a note of the hearing and record the decision of the Committee. 10. The Committee s decision shall be final. 13

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