Capability

You have the right to be accompanied by a companion, at all formal stages of this procedure. A companion can be:

• a trade union representative or official
• a work colleague.

If you choose to be accompanied copies of capability meeting notices, meeting notes, response letter, etc will be sent to that person, unless you advise otherwise, in writing.

You will be given a minimum of 14 calendar day’s written notice of a performance management meeting (except at the informal support stage when a shorter timescale can be agreed). This notice period can be reduced by mutual agreement but should be long enough to give you time to prepare.

You will be advised in writing of the nature of the performance concerns and where appropriate, copies of any information that will be discussed during the meeting.

At the meeting you will be given the opportunity to explain why you are not performing at the required standard before agreeing any steps to remedy the situation.

People Management (PM).

To ensure consistency, the Project Management HR Team will provide advice at every stage of the procedure and will monitor and report on the application of the Policy. PM will also be responsible for ensuring that written records are retained on personal files for the appropriate period and following the principles of the Data Protection Act.

Managers

Your manager has a responsibility to ensure that you are supported, encouraged, properly supervised and trained to do your job. Open communication channels and regular and effective performance appraisal is key to effective staff management and ensures you and your manager have opportunities to raise concerns and/or problems at an early stage. 

The Capability procedure aims to provide a framework for dealing with situations where your performance does not improve or is serious enough to be dealt with formally. 

Under this policy and procedure, your manager is responsible for:

• setting up informal and formal performance monitoring meetings, and advising you of your rights under this procedure.
• keeping detailed performance records and making these available to you at any meetings convened
• meeting and discussing performance issues with you and agreeing possible solutions
• writing to you to confirm the outcome and agreed actions arising from any performance/improvement meeting
• monitoring your performance and setting realistic target dates

Heads of Service

Heads of Service are responsible for ensuring the consistent application of this policy/procedure and for hearing appeals at stage 1 and 2.

Directors

Directors have overall responsibility for ensuring that managers are appropriately trained to deal with performance issues and for managing and/or overseeing stage 3 of the procedure.

Your manager should be satisfied that the following are in place before embarking on this procedure:

• You have completed your probationary period (If not, your manager should use the Managing Probationers Policy)
• You have received an appropriate induction to your job (whether you are new to the Authority or new to the job) and had an opportunity to attend the Corporate Welcome Day if possible.
• You hold the qualifications and skills required to do your job and you have received appropriate training to keep you up to date
• You have the appropriate level of resources, eg. IT equipment, to enable you to do the job
• You have regular appraisals and any agreed support has been put in place

If there is any doubt about whether an issue is a capability or disciplinary issue then an initial investigation should be undertaken to establish whether this or the disciplinary procedure should be followed.

When your manager is concerned about your progress or standard of work, this will be discussed as soon as possible and appropriate support put in place. Your manager need not wait until the next performance appraisal meeting or may wish to bring the meeting forward to deal with the issues. This will be considered as the informal stage of the capability procedure and you should be informed that a failure to improve within agreed timescales may result in the formal procedure being invoked. A written note of the agreed outcomes of any such meeting must be made and copied to you.

As this is intended to be an informal one to one meeting, you will not usually have the right of accompaniment.

If informal action does not bring about an improvement or the issue is considered to be too serious to be dealt with informally then the formal procedure must be invoked.

If your performance has improved within the timescales, your manager must meet you to inform you of this and continue to monitor performance under the usual performance appraisal or supervision framework.

If an improvement is not forthcoming or the issue is too serious to be dealt with informally, a formal meeting with you must be set up. You must be informed in writing of the date, time and location of the meeting, the right to be accompanied, the procedure to be followed and sufficient information about the performance concerns and its possible consequences to enable you to prepare, including performance management records, complaints and any other relevant documents. 

Your manager will conduct this meeting and will be accompanied by another manager from within the department or a PM HR representative. The issues of concern must be clearly stated and you will be given an opportunity to discuss them in detail and put forward your case, ask questions and agree appropriate support if appropriate.

The outcome of the meeting should be to consider:

• The information or evidence submitted by you.
• Whether the issue of a performance development and support agreement is appropriate.
• Whether the standards of other employees are acceptable and consistently applied.
• Your position, length of service, past performance and reasonableness of the intended action.
• Whether training, additional support or reasonable adjustments will assist you to improve and if so, what support is appropriate.
• What are realistic timescales in which you are expected to improve

These decisions may not necessarily be made on the same day but will be made within 2 calendar days and you will be advised in writing including a performance development and support agreement, if appropriate. This time limit can be extended by mutual agreement.

In cases of unsatisfactory performance the development and support plan will set out:

• the performance problem
• the improvement that is required
• the timescale for achieving this improvement (This will not usually be less than 4 weeks or more than 6 months)
• a review date and
• any support, including any training that your manager will provide to assist you. 

You should be informed that the agreement represents the first stage of a formal procedure and is equivalent to a first written warning/improvement note and that failure to improve could lead to a final written warning/improvement note and, ultimately, your dismissal. A copy of the note should be kept and used as the basis for monitoring and reviewing performance over a specified period (e.g. six months).

It is essential that any agreed support mechanisms are arranged and put in place as soon as possible.

If your performance does not improve within the agreed timescales, despite support mechanisms being put in place (if appropriate) or where the issue is too serious to be dealt with by a Stage 1 meeting, your manager will meet with you to discuss the issues.

Again, you must be informed in writing of the date, time and location of the meeting, the right to be accompanied the procedure to be followed and sufficient information about the performance concerns and its possible consequences to enable you to prepare, including performance management records, complaints and any other relevant documents.

The same process as in Stage 1 should be followed but if it is decided that a final development and support agreement is to be issued you will be advised that if your performance does not improve within the agreed timescale then dismissal or other actions may be considered.

Unfortunately, there will be cases where your performance does not improve or where the issue is so serious that it is not appropriate for it to be dealt with at Stage 1 or 2 of this procedure, and where ultimately dismissal or other actions may have to be considered.

Before this action is considered your Director and the Assistant Chief Executive (People Management) or their nominated representatives will review your performance records and any action taken to date and meet with you to discuss this and to decide on the appropriate action.

As in Stages 1 and 2, a formal meeting with you must be set up and you must be informed in writing of the date, time and location of the meeting, the right to be accompanied the procedure to be followed and sufficient information about the performance concerns and its possible consequences to enable you to prepare, including performance management records, complaints and any other relevant documents.

At the meeting, you must be given the opportunity to respond to all the issues raised and to explain any failure to improve and mitigating circumstances.

Your Director and Assistant Chief Executive (People Management), or their nominated representatives must consider all the evidence, the support provided to you, the reasonableness of any action and timescales and the case put forward by you before coming to a decision regarding your continuing employment with the Authority.

This decision does not have to be made immediately and the meeting may need to be adjourned to consider the evidence submitted by you and appropriate actions. However, the outcome of the meeting must be communicated to you in writing within two calendar days of the meeting. This time limit can be extended by mutual agreement.

If it is decided that:

• performance has not improved to the required standard in spite of you being given appropriate support, or
• where the procedure has been invoked at Stage 3 and where serious performance issues have been substantiated then dismissal or another penalty will be considered (Advice must be sought from the PM HR Team before imposing any of these penalties)

As an alternative to dismissal (where appropriate), departments are advised to consider issuing a final development and support plan in conjunction with other penalties and impose what is considered to be reasonable under the circumstances. 

Other penalties include:

• Demotion (permanent and temporary) – if temporary the period of demotion must be set out in the letter to you
• Reduction in salary (permanent and temporary) -. If temporary the period of reduction must be set out in the letter to you
• Transfer to another job or department

This decision and the reasons for it will be communicated to you in writing within 2 calendar days of the Stage 3 meeting.

A decision to dismiss should not be based on an expired agreement but the fact there is an expired agreement can be a factor for determining why a lesser sanction is not considered reasonable.

The aim of this policy is to support you to improve or to remain in the employment of the Authority. Options to consider include:

• Training: This may be appropriate where your role has changed or if new statutory requirements or legislation impact on the role for which no training or coaching has previously been provided.
• Counselling: You may indicate that personal problems are impacting on your work performance.
• Referral to Occupational Health: Should be considered if your health is impacting on your ability to perform at the required level.
• Review of job profile and workload: This may be appropriate if it is apparent that the job has changed and/or the workload has increased to the extent that it is not manageable.
• Referring the issue to the disciplinary procedure: It may become apparent that the employee has been negligent or is refusing to work to the required standard.
• Redeployment: Should only be considered as a last resort if it is agreed that you are no longer able to carry out your current role and would benefit from moving to a different or less responsible role.
• Making adjustments to the job: This should be considered if you are unable to undertake the full range of duties as a result of health or disability. In these cases, you should be referred to Occupational Health before determining a course of action.

There may be occasions when you are unable or unwilling to attend a meeting as part of the capability investigation or formal process, e.g. illness. Before proceeding with the meeting your manager should consider the following:

• medical opinion on whether you are fit to attend the meeting
• the seriousness of the capability issue under consideration
• your performance record (including current development and support plan’s), general work record, work experience, position and length of service
• the rules relating to conduct, behaviour and attendance

Where you continue to be unavailable to attend a meeting the Authority may conclude that a decision will be made on the evidence available. You will be informed where this is the case.

If, in the course of this process, you raise a grievance, which is related to the case, your Head of Service or Departmental Director must consider whether it is appropriate to temporarily suspend the capability process in order to deal with the grievance. Where the capability and grievance cases are related it may be appropriate to deal with both concurrently. The suspension should not be unnecessarily protracted and should allow for the grievance to be dealt with as quickly as possible. Advice should be sought from the PM HR Team and reference made to the ACAS Guide.

If “capability” action is being considered against an you employee and you are a trade union official the normal capability procedure will be followed. Your manager must seek advice at an early stage from the PM HR Team in such instances.

Development and Support Agreements will be retained on your personal file but will be disregarded for future “capability” purposes after 12 months.

However there may be occasions when your performance is satisfactory throughout the period of agreement only to lapse soon thereafter. Where a pattern emerges and/or there is evidence of abuse, your performance record should be borne in mind in deciding how long an agreement should last.

You have the right of appeal against action instigated under the formal stages of this procedure, on the following grounds:

• If you think the conclusion and/or penalty is unfair or unreasonable in the circumstances
• If you consider that the support offered is inadequate or inappropriate
• New evidence comes to light which could have affected the outcome of the performance management meeting
• Failure to follow procedures

For Stages 1 and 2, you should make your appeal in writing (wherever possible) within 14 calendar days, to your Head of Service who will make the necessary arrangements to hear the appeal. Your letter should outline the detailed reasons for appeal. Your Head of Service may nominate a suitable representative to hear your appeal.

For Stage 3, you should make your appeal in writing (where possible) to the Assistant Chief Executive (People Management) who will arrange for the appeal to be heard by the Appeals Panel (Officers).

Appeals will be acknowledged within 14 calendar days.

If you need support when submitting an appeal you should contact the PM HR Team or Trade Union representative.

The Appeal Hearing and decision is final and there is no further right of appeal within the Council.

Written records must be kept throughout the process, including:

• The performance concerns raised with you
• The information or evidence provided by you
• The performance improvement/support agreement
• The reasons for actions taken
• Whether an appeal was lodged
• The outcome of the appeal
• Any grievances raised during the capability procedure, and any subsequent developments
• A copy of all correspondence relating to the capability investigation, meetings and appeal process
• Copies of any formal meetings.

Records should be retained on your employee’s personal file.

Records should be treated as confidential and kept in accordance with the Data Protection Act 1988.

All Trade Union representatives, Officers and Councillors involved in this process should receive appropriate support and/or training. Contact the PM HR Teams for further information.

This policy must be applied consistently to all employees irrespective of race, colour, ethnic or national origins (including citizenship), language, disability, religion, belief or non belief, age, sex, gender reassignment, sexual orientation, parental or marital/civil partnership status, pregnancy or maternity.

If you have any equality and diversity concerns in relation to the application of this policy and procedure, please contact a member of the HR Team who will, if necessary, ensure the policy/procedure is reviewed accordingly.

Reasonable adjustments

Your manager must consider your needs if you are disabled during the process and make reasonable adjustments as necessary. For example, ensuring that meeting locations have appropriate access, written information is provided in a suitable format, etc. 

• Capability Policy (.pdf)
• Flow chart (.pdf)
• The role of the companion (.pdf)