A12a: Main page
Working together to overcome a shortfall in your performance
Page contents:
Introduction
Short-term dips in performance
An overview of the Capability Procedure
Responsibilities of those involved
Principles of the procedure
- Stage 1 (informal)
- Stage 2 (formal)
- Stage 3 – (formal) The Capability hearing
- The Panel recommendation
Appeals
Sustaining levels of improvement
Capability and health
Non-attendance at capability meeting/hearing
1. Introduction
1.1 Capability relates to your ability to successfully perform the duties and requirements of your post. Your ability to do a job is determined by the skills (both mental and physical), qualifications, personal qualities and expertise you possess, and also by your health.
1.2 The purpose of the Capability Procedure is to:
- Ensure that the required standards of work performance are maintained
- Help and encourage you to achieve required standards; and
- Provide a framework for dealing with issues of under performance in a fair and consistent manner
1.3 In assessing your capability we will consider all aspects of your performance and any other factors which may be affecting your ability to work to the required standard. Your managers will take all reasonable steps to help you to improve your performance. Unsatisfactory performance may affect your pay and may, in serious or persistent cases, lead to dismissal on grounds of capability.
1.4 Lack of capability is not a disciplinary offence. However, where unsatisfactory performance results from deliberate carelessness, inattention, or neglect, we will consider the case as one of unsatisfactory conduct under the disciplinary rules - see section A12b.
1.5 The rules and procedures given in this section do not apply during your probationary period. We will deal with any capability issues during your probation under the Probation Policy – see appendix A1:1.
1.6 Issues relating to poor attendance due to sickness are covered in the Health and Attendance Strategy paragraph 1, appendix A9:4.
2. Short-term dips in performance
There will be rare occasions when you have a short-term dip in performance due to other mitigating factors (e.g. personal or domestic problems). These are usually resolved through discussion with your line manager and need not result in any further action. The Capability Procedure will be used for situations in which a short-term dip extends into a more persistent shortcoming, or when short-term dips are repeated.
3. An overview of the Capability Procedure
3.1 The capability procedure has three clear stages. The stages will be followed sequentially (except in the circumstances outlined in paragraph 3.4 below, paragraph 7.2 below and paragraph 8.2.3 below) if performance has failed to improve to the required standards at the end of the previous stage. A flowchart overview of this procedure is at appendix A12a:1.
3.2 Stage 1 is informal; Stages 2 and 3 involve formal meetings with the employee whose performance is not meeting the required standards. During Stages 1 and 2 a plan is set to address and resolve the areas of under performance, including clear targets and review points.
3.3 Stage 3 of the process involves a formal hearing in front of a panel. The panel will consider the areas of under performance, and will give you the opportunity to respond. The panel will make a decision on what action is appropriate following consideration of all the evidence.
3.4 Where your line manager judges that a lapse in performance, for whatever reason, could or does result in serious consequences (e.g. where you have a key role, or where the safety of others is at risk) they will consult the Head of HR about whether we should suspend you with pay and invoke Stage 3 of the procedure.
3.5 If you or your managers consider that a drop in performance, whether gradual or sudden, is due to health reasons, we will follow the procedure set out in paragraph 8 below.
3.6 Where your managers suspect alcohol/drug abuse or dependance, they will consult the relevant procedures and guidance – see paragraph 1, appendix A9:4i.
3.7 If at any stage you are unable to attend a meeting/hearing to discuss your performance we will follow the process in paragraph 9 below.
3.8 We will record all matters relating to capability proceedings on your personal file and all activities will be conducted in accordance with the requirements of the Data Protection Act 1998 – see guidance note Data Protection Act 1998 (PDF 152KB).
4. Responsibilities of those involved
4.1 Line Managers are responsible for:
- Setting realistic objectives and standards of performance for your role, in consultation with you
- Ensuring that you receive the necessary training and support to meet your objectives and any targets set
- Making you aware of and addressing performance issues at the earliest opportunity
- Providing you with evidence of your shortcomings e.g. failure to achieve required outputs, impact on the work of the office/laboratory
- Giving an honest and constructive appraisal of your performance as part of the Performance and Personal Development Review (PPDR), including areas that require improvement
- Notifying HR of capability issues as they arise
4.2 Employees are responsible for:
- Ensuring that their performance meets the requirements of their role and any targets set
- Advising their line manager or Head of HR, at the earliest opportunity, of any issues affecting or likely to affect their performance
- Maintaining contact with their line manager
4.3 Co-Signatories are responsible for:
- Ensuring that line managers do not set unrealistic objectives
- Ensuring that line managers address areas of unsatisfactory work, low productivity and other aspects of performance of their employees
- Providing support, guidance and coaching to line managers where they have under performing employees
- Providing support and guidance to employees
4.4 Human Resources are responsible for:
- Ensuring that there is consistency in application of the capability procedure
- Providing support, guidance and coaching to line managers and co-signatories where they have under performing employees
- Providing support and guidance to employees
5. Principles of the procedure
We will observe the following principles in all cases involving a lapse in standards of performance:
- You will be informed at the earliest possible opportunity that there are areas of your performance that need to be improved
- At all stages we will discuss the situation with you and you will have a chance to give your view
- We will take into consideration all relevant information to establish the facts
- We will give you the opportunity and support to improve your performance
- A work colleague or trade union representative can accompany you at all meetings in stages 2 and 3
5.1.1 In most cases you and your line manager will handle issues of under performance through normal informal day to day interactions in the following way.
5.1.2 Your line manager will draw to your attention any unsatisfactory performance as part of the ongoing monitoring and appraisal of work outputs.
5.1.3 Your line manager will explain to you how you are failing to reach the necessary standards, which will be defined clearly and unambiguously. Your line manager will give you the opportunity to indicate any reasons or underlying causes for the unsatisfactory performance.
5.1.4 You and your line manager will jointly identify and discuss clear targets for improvement with timescales and check points, and any training necessary to achieve them. These will be recorded on your personal file. Your line manager will explain that if there is no improvement then formal action may be taken. Your line manager will review the situation with you at the end of the review period and, taking account of your grade and role, consider what we can reasonably expect of you at that time.
5.2.1 Where you remain unable to meet the required standards of performance you will be invited in writing to a meeting with your line manager (who will be accompanied by a representative from HR) to discuss the areas of concern and to hear your views (letter 1). Your line manager will review with you the previous targets and actions and amend these where appropriate. Your line manager will also identify timescales and checkpoints and set a review date by when they will expect you to have demonstrated an improvement. A trade union representative or colleague can accompany you at this meeting.
5.2.2 A trade union representative or colleague can accompany you at this meeting. To exercise the right to be accompanied to a capability meeting you must make a reasonable request; this will depend on the circumstances of the case. For example it may not be reasonable to be accompanied by someone from a remote location if someone suitable is available on site.
5.2.3 After the meeting your line manager, in consultation with HR, will consider whether a written warning is appropriate and if so will write to you within 7 calendar days (letter 2) confirming:-
- The areas where capability remains an issue
- Any actions that have been taken thus far to try and address the performance issues
- The proposed actions needed to secure a satisfactory level of performance
- A statement of what constitutes a satisfactory level of performance and the time-scale for the improvement. (This will depend on the circumstances of each case but will normally be no longer than 6 months)
- A written warning that, unless resolved by the end of the given period, the lapse in performance will be considered under Stage 3 of the capability procedure and may result in dismissal
- Your right of appeal see paragraph 6, below
5.2.4 If your performance reaches the required standard within the set time period your line manager will take no further action under the capability procedure and normal monitoring of performance resumes. Aside from PPDR forms we will remove all documentation relating to the period of under performance from your file no later than 12 months following the date your line manager halted the procedure.
5.3 Stage 3 – Capability Hearing
5.3.1 We will instigate stage 3 of the procedure where:-
- following initial action referred to in paragraph 5.2 above, your performance remains unsatisfactory; or
- in accordance with paragraph paragraph 3.4 above, paragraph 7.2 below or paragraph 8.2.3.
5.3.2 Your co-signatory will normally undertake the duties set out in the following paragraphs but exceptionally, we may designate another senior person to undertake these duties. Where this is the case, we will inform all parties at the outset of the procedure.
5.3.3 Your line manager, in consultation with HR, will report in writing to your co-signatory the nature of the alleged unsatisfactory performance, the areas in which your performance is below the required standard, and the actions taken so far to address the matter. Your line manager will give you a copy of the report (letter 3).
5.3.4 Your co-signatory will appoint a panel to hear the case. This panel will comprise of your co-signatory, a representative from HR (who will act as Chair), and at least one other management representative, who has knowledge of the type of work involved.
5.3.5 The process for the capability hearing is as follows:
- Your co-signatory will advise you in writing of the details of the hearing and panel members (letter 4). The hearing will normally take place within 28 calendar days of your co-signatory receiving the report referred to in paragraph 5.3.3 above
- Prior to the hearing the Panel will gather and review all the relevant information, including reports from your line manager, relevant documents, examples of work undertaken by you, PPDRs and/or probation reports. You will receive a copy of all the information collected at least one week prior to the hearing
- A trade union representative or colleague can accompany you at the hearing (see paragraph 5.2.2)
- The Panel will expect you to provide a written and/or oral response to the statement of alleged unsatisfactory performance and any new information collected by them. Your TU representative or a work colleague may assist you with this.
- At the hearing you or your representative can ask questions, present evidence, and call witnesses
- The Panel may choose to call other witnesses selected by them or nominated by you. If you challenge the evidence provided by witnesses the Panel may follow this up prior to taking a decision
- At no stage in the procedure can either party record a meeting or hearing, using electronic recording equipment, without prior agreement. For example we may allow you to record the hearing as a reasonable adjustment. Any such request should be made at least three working days before the planned meeting/hearing, However it should be noted that a formal note will always be made of the hearing and a copy given to you. These notes are not meant to be verbatim but will be an accurate reflection of the points discussed and will form the official record of the meeting/hearing. You will have an opportunity to comment on the notes of the meeting but this will not delay a decision. Any disagreements will be noted. In addition you and your representative may also choose to take your own notes
5.4.1 The Panel will consider the case and the evidence given at the hearing and decide on one of the following actions:-
- extend the capability procedure for a defined period in your current role, accompanied by relevant training to enable you to reach and maintain the required standards of your job; or
- subject to suitable vacancies, offer you a trial period in another job (this may be at a lower pay band at the appropriate rate of pay where it is offered as an alternative to dismissal) to be accompanied by relevant training to enable you to reach and maintain the required standards; or
- recommend dismissal to the Head of Operations, (or equivalent). The Panel will recommend dismissal where, based on the evidence, they believe that you are unable to perform satisfactorily in your current post now or within the foreseeable future and no suitable alternative work is available.
5.4.2 The Panel will confirm their decision to you in writing, normally within 14 calendar days of the hearing. The letter will include as appropriate:
- The nature of the unsatisfactory performance
- The period of time given for improvement and the improvements/standards expected. In the case of a further extension of the capability procedure in your current job, this will normally be no longer than one month (letter 5). For a trial period in another job the period will normally be no longer than three months (letter 6)
- The training to be provided
- The frequency of reviews of progress
- The consequences of a failure to improve sufficiently to meet the full requirements of the post (i.e. another stage 3 hearing)
- A recommendation of dismissal
5.4.3 In the case of dismissal, the Head of Operations (or equivalent) will reach a decision and notify you in writing, normally within 7 calendar days of the date of the recommendation – see (link) on effective date of termination. The Head of Operations will either confirm the recommendation to dismiss and set out your right of appeal (letter 7), or set out proposals for further action short of dismissal.
6.1 You can appeal against a written warning at stage 2 and/or the decision made by the panel in stage 3 (excluding dismissal – see paragraph 6.2) to the Head of Operations (or equivalent) who, in consultation with the Head of HR, will appoint a suitable person to hear your appeal.
6.2 An appeal against dismissal should be sent to the Director (Director of HRCS Group in the case of BBSRC office) who, in consultation with BBSRC HRCSG, will arrange for a suitable person to hear your appeal.
6.3 Send your written notice of appeal within 14 calendar days of the date of the letter notifying you of the outcome.
6.4 Your appeal will normally be heard within 28 calendar days of receiving your letter of appeal (letter 8). You will be given the opportunity to state your case at the appeal hearing. Before attending the hearing you may make a written response. If you prefer, you can make written representations instead of attending the appeal hearing.
6.5 Another suitable person will take a formal note of the hearing.
6.6 A trade union representative or work colleague can accompany you at the hearing. Other employees or persons from outside the Institute may be asked to give evidence. If this is the case you will be notified in advance of the meeting.
6.7 The possible outcomes of your appeal include:
- Confirming the decision; or
- Amending the decision; or
- Overturning the decision
6.8 You will be notified in writing of the outcome of your appeal (Letter 9) within 14 calendar days of the hearing – see (link) on effective date of termination. There is no further right of appeal.
7. Sustaining levels of improvement
7.1 It is important that you perform consistently at the level expected and required of you. Where a dip in performance is serious enough to result in your line manager taking action within one year of any previous formal capability action, they will proceed straight to stage 2 and put in place a final three-month trial period.
7.2 If you are subject to a recurring pattern of capability action over a period of time, either because of a single weakness or different weaknesses, we will instigate stage 3.
8. Capability and health
If at the outset your line manager considers that ill health has contributed significantly to your unsatisfactory performance they will take the following action before taking action under the Capability Procedure.
8.1 Occupational Health referral
8.1.1 Your line manager will refer your case to an Occupational Health Adviser (OHA) for guidance. OHA will seek your consent to obtain medical information from your doctor. If you do not attend a medical appointment and/or refuse to give consent, your case will still be referred to an OHA who will only be able to advise based on the information that is available.
8.1.2 Your line manager, in conjunction with a representative from HR, will provide the OHA with the following information (copied to you):
- Details of your sickness absences from work over the relevant period, including the duration and reason
- Your job description and forward job plan
- A summary of the case and any action taken to date
8.1.3 Your line manager will also seek to establish the circumstances surrounding your ability to perform your job at the required level. These may include:
- Whether you will be fit to return to work in the foreseeable future (if applicable)
- Whether you are able to carry out the tasks listed in your job description and forward job plan
- If you have an underlying medical condition
- If you have a condition which might be covered by the Disability Discrimination Act (DDA), and if so whether there are any reasonable adjustments that we could make to enable you to perform your job to the required level
- What type of work you might be able to undertake if your condition prevents you from carrying out your current duties for the foreseeable future
- Whether you would be eligible for medical retirement
8.1.4 Your line manager will have regard to the requirements of the DDA in respect of reasonable adjustments to your work and the working environment.
8.2 Action following OHA advice
8.2.1 Your line manager and a representative from HR will discuss with you the advice from the OHA and if you are disabled, consider with you adjustments to your individual objectives and/or role. You will have an opportunity to comment before they take any further action. The outcome of this meeting will be confirmed to you in writing.
8.2.2 If the OHA advises that you are not likely to be able to give regular and effective service and that medical retirement would be appropriate, your line manager will discuss this with you with a view to seeking your agreement. However, if you refuse, this will not preclude management from retiring you on ill health grounds as set out in the rules of the Research Councils' Pension Scheme, if we judge this to be justified in the circumstances of your case.
8.2.3 If the OHA identifies medical reasons which have contributed to your reduced performance but which are not serious enough to warrant medical retirement, your line manager will instigate the Capability Procedure, taking into account whether reasonable adjustments can be made to your job and other working conditions. However, if you are on long term sick absence, and the OHA advises that there is little likelihood of a return, we will follow stage 3.
9. Non-attendance at a capability meeting/hearing
9.1 You (and if appropriate the person accompanying you) are expected to make every effort to attend an arranged meeting/hearing.
9.2 There may be occasions when we are unable to contact you or you are unable to attend a meeting/hearing. However, it is important that the process is not unreasonably delayed at any stage and therefore in these circumstances the following will normally apply:
- If your representative is not available you should offer a reasonable alternative date within five days of the original date. Meetings cannot be unreasonably delayed due to the non-availability of a particular representative
- If you fail to attend due to circumstances beyond your control (e.g. illness) we will arrange another meeting with you
- If you are repeatedly unable or unwilling to attend a capability meeting and/or a capability hearing the following alternatives may also be offered in order to give you every opportunity to present your views:
- Holding the meeting at your home
- holding the meeting at a neutral location
- Holding the meeting via a telephone or video conference
- Going ahead with the hearing in your absence but with a TUS representative or work colleague of your choosing who will present your case
- Going ahead with the hearing but taking into account any written representations that you wish to make
9.3 If all reasonable attempts to arrange an alternative meeting/hearing fail we take account of the following before making a decision on how to proceed:
- The seriousness of the issues under consideration
- Any current warnings, your general work record, work experience, position and length of service
- Medical opinion from the Occupational Health physician on whether you are fit to attend the meeting
- How we have dealt with similar cases in the past
We may decide to proceed in your absence, but you will be advised in advance. The meeting/hearing will take into account all the available relevant information and available evidence and you will be notified of the outcome in writing and made aware of your right to appeal, as appropriate.
9.4 The same facilities as outlined in paragraph 8.4 and 8.5 above will also apply to appeal hearings.
Last updated 04/08/10
Amendment 102 - August 2009