BASINGSTOKE AND NORTH HAMPSHIRE NHS FOUNDATION TRUST. Regulation of Capability Procedure. [Policy Number HR/381/10]

Transcription

1 BASINGSTOKE AND NORTH HAMPSHIRE NHS FOUNDATION TRUST Regulation of Capability Procedure [Policy Number HR/381/10] This supersedes the Trust Performance Management policy Owner Name Nigel Evison Job Title Head of HR Policy and Practice Final approval Name Executive Committee committee Date of meeting September 2010 Divisional Governance Boards (dates of approval) Corporate & Support Services July 2010 Elective July 2010 Emergency June 2010 Maternal & Child Health July 2010 Authoriser Name Donna Green Job title Signature Chief Operating Officer & Director of Nursing Date of authorisation Review date (maximum 3 years from September 2013 date of authorisation) Audience (tick all that apply) Trust staff Standards Related Policies Standards for Better Health NHSLA 2007 Policy numbers and names N/a N/a Maintaining High Professional Standards in the NHS Equality Impact Assessment Date completed 26 August of 24

2 Summary The document details the Trust s procedure and process for fairly and consistently managing cases where it is considered that an employee s performance and capability to do their job has fallen short of an acceptable standard. The procedure covers all staff employed by Basingstoke and North Hampshire NHS Foundation Trust with the exception of medical and dental staff for the Trust s where the document Maintaining High professional standards in the NHS: Policy for handling concerns about Doctors and Dentists in the NHS should be used on such matters. This procedure does not apply to cases concerning the conduct of employees. In such cases the Trust s Regulation of Conduct (Disciplinary) Procedure should be used and the policy named in the paragraph above for matters related to medical or dental staff. Implementation Plan The Head of Human Resources is responsible for the implementation of this procedure. To be submitted to the Executive Committee in September Following approval, the Library will update the procedure document on the Trust s intranet. Human Resources Business Partners will brief managers on the procedure following approval. Information will also be published in via other internal mediums to communicate the new policy. This procedure will be supported by development of guidance material for employees and managers. Once available, this guidance material will be published on the Trust intranet. Training on Managing Everyday Performance is available to managers The Equality Impact Assessment for this procedure will be published on the Trust internet. Summary of changes This procedure will replace the Trust s Performance Management Policy. The key changes include: clarifying the process, approach, timescales involved and bringing the policy into line with other policies with regards to sanctions which can be issued, identifying managers with dismissing rights and appeal processes for employees. Evaluation and review Monitoring and review arrangements are detailed in Section 13 of the procedure. This procedure will be fully reviewed before the end of September 2013, or earlier if indicated by the result of monitoring and review, legislation, statutory guidance or changes to NHS or Trust terms and conditions of employment. 2 of 24

3 Table of Contents Section Page 1. Policy Statement 4 2. Purpose 4 3. Scope 4 4. Main Principles 5 5. Definitions 7 6. Responsibilities 9 7. Procedure Informal process Procedure Formal process Appeal Procedure Grievances raised during a performance process Sickness Absence during a performance process Supporting Guidance Monitoring and Review References 23 Appendix 1 List of Dismissing Officers 24 3 of 24

4 1. Policy Statement 1.1 The Basingstoke and North Hampshire NHS Foundation Trust ( the Trust ) is committed to encouraging and supporting staff to achieve high standards of performance. The Trust promotes good management practice and the foundations of effective performance management are based on a blend of processes and informal interventions including Trust policies, job descriptions, clear objectives, regular two way feedback during one to one meetings, team meetings, annual appraisals and personal development plans along with appropriate supported training and development. It is the Trust s belief that if this best practice approach is applied, use of the formal performance mechanisms contained in this procedure can be minimised 1.2 The Trust s Regulation of Capability Procedure is a further way to help achieve this aim by setting out a clear procedure and process for fairly and consistently managing cases where it is considered by an employee s manager that their performance has fallen short of an acceptable standard, or there is concern about an employee s capability to perform their role. 1.3 The Trust s Regulation of Capability Procedure incorporates guidance contained in the ACAS booklet on How to manage Performance and is in line with the ACAS Code of Practice on disciplinary and grievance procedures. 2. Purpose 2.1 The purpose of this procedure is to outline the process that will be followed by the Trust in all cases where an acceptable standard of performance is not being met by an employee or where there is concern about an individual s capability to fully perform their role for any reason with the exception of health related reasons. Concerns about an employee s capability to perform their role due to health reasons, is managed under the Trust s Sickness Absence Management Policy. 2.2 This procedure is designed to deal with those cases where an employee is lacking in some area of knowledge, skill, or ability and is consequently unable to undertake the required duties of their role to an acceptable standard. 3. Scope 3.1 This procedure applies to all employees of the Basingstoke and North Hampshire NHS Foundation Trust with the exception of Medical and Dental staff for whom such matters are dealt with under the Trust s Policy for the Handling of Concerns about Doctors and Dentists in the NHS. 3.2 This procedure does not cover: The management of cases related to employee conduct (The Regulation of Conduct ( Disciplinary) Procedure applies) 4 of 24

5 The management of sickness absence. (The Sickness Absence Management Policy applies). Management of performance or capability concerns for employees during their probationary period (The Probationary Procedure applies). 4. Main Principles 4.1 This procedure will be applied fairly and consistently to all employees regardless of race, ethnic or national origin, colour or nationality; gender (including marital status); age; disability; sexual orientation; religion or belief; whether working full or part-time or whether employed under a permanent or a fixed-term contract. 4.2 Where an employee has difficulty in communicating, whether verbally or in writing, arrangements will be put in place as necessary to ensure that the process to be followed is understood and that the employee is not disadvantaged during the application of this procedure. 4.3 In line with the Disability Discrimination Act 1995, the Trust will make reasonable adjustments to the process to be followed where not doing so would disadvantage an employee with a disability during the application of this process and at any formal meetings. 4.4 The philosophy of this procedure is to support employees to an acceptable level of performance and capability over a period of time by active management, monitoring, feedback and support from their line manager. 4.5 It should be noted that information from this performance process may feed into an employee s appraisal, but an appraisal does not form any stage of the formal process and the two processes must be managed separately. 4.6 In all cases an informal approach to improving an employee s performance will be the first course of action before moving to any formal management of underperformance. Information and actions to be considered as part of the informal approach are outlined in Section Where an informal approach has been taken in line with this procedure and successful performance has not been achieved by an employee then their manager may need to consider moving to the formal process for managing and improving employee performance. 4.8 Before a manager embarks on the formal process, they must discuss the specific case with their Human Resources Officer or HR Business Partner to outline the areas of performance concern, the actions taken so far and to seek guidance on how to proceed in the formal process. 4.9 Once it has been decided to move into the formal process for managing employee performance, the individual employee will be informed by the line manager that despite informal support, the employee s performance still remains below the acceptable standard and that a more formal approach will be adopted. 5 of 24

6 4.10 The invite to any meeting in the formal stage of the process will give a minimum of 7 calendar days notice (excluding bank holidays) between the date of the letter inviting the employee to a formal performance meeting and the date of the meeting Where an employee, or their representative (or colleague) have good reason to ask for a meeting to be re-arranged, the meeting may be rescheduled to another date, not more than 7 calendar days (excluding bank holidays) from the original date At every stage of the formal process, an employee will be given an opportunity to give an input to the meeting (for example agreeing objectives, a formal review of performance, identifying support/ training required) As directed by the employee, the employee s representative or colleague attending the formal performance meetings will be entitled to put forward comments on behalf of the employee, or respond to any view expressed at the meeting. They may not, however, answer questions on the employee s behalf Any documents to be referenced during the formal performance meetings by the Line Manager will be made available to the employee prior to any formal meeting. Documents should be sent to the employee (normally with any letter inviting them to attend a formal meeting) at least 7 calendar days (excluding bank holidays) before a formal meeting. Where documents are highly sensitive or contain highly confidential data (i.e. patient information), the Trust may need to redact certain information, but reasonable provision will be given to the employee to view these documents in full (no redaction) on Trust premises prior to a formal meeting The aim of any sanction for under performance, which is short of dismissal, will be to help the employee achieve the required standards of performance for their role and will also identify the steps necessary to achieve this. Steps may include support and guidance through further instruction, training, assessment, counselling or supervision At the end of every stage of the formal process, the employee will sent in writing, a confirmation of the discussion held, action plans agreed, any support offered and any formal sanction which may have been issued, along with information about their right of appeal Records made during the formal performance process will be treated as confidential and kept in accordance with the Data Protection Act The records will include: Details of the aspects of performance causing concern or which is below the acceptable standard Copies of documents, assessments, statements, or any other information which has been submitted by either party for consideration as part of the formal performance process Copies of performance objectives, action plans and support put in place during the formal process. 6 of 24

7 Details of information or any sanction issued at any stage of the formal performance process, including outcome letters and copies of meeting notes Details of any appeal and its outcome Any subsequent developments. Records will be kept confidentially in the Human Resources Department with a copy of any outcome letter and typed notes, kept confidentially in the personnel file of the employee. Records will be destroyed on whichever of the conditions below expires first: 6 months after the employee has successfully improved and maintained performance to a satisfactory level and all formal processes have been closed out, as outlined in section 8 or On the expiry of any warning, or When an employee has been dismissed, 12 months after the employee s last day of service with the Trust (except where there is a justifiable reason for retention of the employee s records for longer than 12 months). 5. Definitions 5.1 Line Manager The Line Manager will be the immediate line manager, except in circumstances where the complexity of the case means a more senior manager should handle the case or where the immediate line manager has any conflict of interest or may not be perceived as impartial in handling the case. 5.2 Hearing Officer The Hearing Officer will: be a different manager to the one who has taken the role of Line Manager in either the informal or formal stages of the performance process for the employee In the case of an Appeal hearing, will be a different manager from the hearing officer in the final formal review hearing and will be as outlined in the Appeal process set out in section 9. be a manager with the authority to dismiss from the Trust, as listed in Appendix 1 be unlikely to be the employee s immediate line manager, unless they have the correct level of authority and have had no previous involvement in the specific case. 5.3 Representative An employee of the Trust who is appointed by their trade union or professional association to represent the interests of the union's members within the Trust, under the terms of the Trust's Recognition of Trade Unions Policy and Procedures. (Should an independent trade union not be recognised by the Trust 7 of 24

8 a full-time officer of that union may undertake the role of representative as set out in this procedure). 5.4 Colleague An employee of the Trust other than: A family member or relative of the employee Someone appearing as a representative Someone appearing in a legal capacity, e.g. a practising solicitor or barrister who is asked by an employee to accompany them to any formal hearings or meetings held under this procedure. 5.5 Capability An employee s skills, ability, aptitude and knowledge in relation to the job that he or she is employed to do. Lack of capability can lead to unsatisfactory job performance by an individual 5.6 Underperformance Where an employee s work consistently fails to meet the standards required by the Trust for the role, as defined by the job description and/or KSF for the role. 5.7 Informal process Where a manager identifies that an employee is underperforming and highlights this to the employee, outlining the standards of performance which are expected and offering additional support, training and guidance which may assist in addressing the situation, This is done as part of the everyday management and supervision of employees. 5.8 Formal Performance process The process started by the line manager as a way to help the employee achieve the employer s required standards of performance where insufficient improvement in performance has been achieved from the informal management support and guidance offered. The formal process will set objectives to be achieved, monitor and formally review progress with the employee at key stages. 5.9 Warnings These are formal sanctions which may be issued at the stage 1 and stage 2 formal review meetings where an employee s standard of performance has not reached the satisfactory and expected standard for the role. These warnings may also be taken into account by a Hearing Officer who is considering a matter under the Trust s Regulation of Conduct (Disciplinary) Procedure. 8 of 24

9 5.10 Redeployment The moving of an employee to another post within the Trust on a temporary or permanent basis, where it is identified that this may be better suited to the employee s skill and capability to perform to the required standard and is an alternative to dismissal from the Trust. Redeployment to a role at a lower pay band, for reasons of underperformance, will not be eligible for Pay Protection under the Trust s Pay Protection Policy Demotion Where an employee accepts a permanent role on a lower pay band than the current role, as an alternative to continuing under the formal performance process or receiving a sanction such as a formal warning, or dismissal. This may be appropriate for an employee who has not been able to cope with a promotion, but who was satisfactory in the previous role. In such situations, demotion will not be eligible for Pay Protection under the Trust s Pay Protection Policy. 6. Responsibilities 6.1 Line Managers To ensure that they are familiar with this procedure and to apply it fairly and consistently. To ensure that more junior managers understand this procedure and apply it fairly and consistently. To keep their Human Resources Business Partner/Human Resources Officer informed of all matters that may need to be addressed through this procedure. To manage the informal performance process, identifying the performance concerns and support required to improve an employees performance and to hold informal performance meetings with their employees as appropriate and necessary, within a timely manner To set and agree the specific performance objectives with the employee to enable improvement to the full standard required by the role To determine, in consultation with their Human Resources Business Partner/Human Resources Officer, when a performance concern about an employee should be moved to the formal stage of this process and to work with their HR Officer/ Business Partner throughout all stages of the formal process To chair the formal performance review meetings in stage 1 and stage 2 of the formal process 9 of 24

10 To present the management case, if required, to the hearing officer at the final formal review hearing. 6.2 Hearing Officer Following receipt and consideration of a formal performance report and in consultation with their Human Resources Business Partner/Human Resources Officer, to determine the appropriate actions to be taken and to inform the employee accordingly. Where an employee is to be subject to a final formal review hearing and in consultation with their Human Resources Business Partner/Human Resources Officer to: To inform the employee in writing of: o the aspects of performance which are causing continued concern and why this performance is not considered at a satisfactory level. o Where and when the hearing will be held and that they have the right to be accompanied by a representative or a colleague employed by the Trust o the procedure that will be followed at the final formal review hearing o the documents that will be produced at the hearing (enclosing copies of these documents) o Who will be present at the hearing, and in what capacity To chair the final formal review hearing and where required by this procedure, appeal hearings. Following any formal hearing, to notify the employee, verbally and in writing, of the decision of the hearing and of the employee s right to appeal against any decision made. To invite any line manager to present the performance case and recommendations, where applicable at the final stage performance hearing or in the case of an appeal hearing, to invite the Hearing Officer from the final formal review hearing to present the case and rationale for any decision made. 6.3 Human Resources Business Partners and Human Resources Officers To provide advice and employment law advice to line managers to help ensure the fair and consistent application of this procedure across the Trust. To help ensure the correct, fair and consistent application of this procedure. Where required, to provide formal, advisory support to Line Managers and any Hearing Officer during the formal stages of the process To attend formal review meetings and appeal hearings in an advisory and secretarial capacity to the Line Manager or Hearing Officers (In some 10 of 24

11 circumstances note-taking responsibilities may be undertaken by another appropriate person, e.g. a Personal Assistant or HR Administrator). To ensure that any time-expired warnings for any of their employees are removed from employees personal files and destroyed and to notify them in writing when this has been done. 6.4 Representatives To help ensure the fair and consistent application of this procedure. To understand the process and protocols to be followed during review meetings and appeal hearings and other relevant meetings, ensuring that employees they are representing also understand these processes and protocols. 7. Procedure Informal Process 7.1 Identifying a performance concern The line manager may become aware of concerns about an individual s performance via a number of different mechanisms including any/all of the following, though this not an exhaustive list: Missed deadlines on work assigned Individual objectives not met Not meeting the requirements of the role job description Feedback from other colleagues, key internal customers Patient/ Internal complaints Audit results Managers observations on performance Documented information on appraisal forms/ 1:1 meeting notes. Behaviours which are not consistent with expectations of the role/ KSF 7.2 Informal Meetings/ Discussions When a line manager first identifies that there are aspects of an employee s performance which are not meeting the required standard the line manager must take steps to address this immediately by having a discussion with the employee. This discussion will normally be a face to face discussion (without HR or representatives present) where the manager should: highlight the areas of performance which are a concern clearly explain the standard which is required and expected for the role discuss any additional support or development (including training) the individual may need to address these aspects timescales for achieving improvement agree specific actions and a review date 7.3 It is likely that the line manager will need to hold several 1:1 meetings which explore the above aspects with the individual and after each meeting the manager should document the discussion and the agreed informal action plan on an or letter to the individual to ensure there is clarity on both sides. 11 of 24

12 7.4 The line manager should also explore at this stage if a management referral to Occupational Health may be appropriate to identify if there may be an underlying health condition which could be impacting the performance of the individual. The outcome of this referral may require the line manager to signpost the individual to other sources of support where personal issues have been identified. 7.5 During this period of informal action, it is recommended that the line manager meets with the individual on a regular basis (i.e. weekly/ fortnightly) to review progress against any agreed actions and to ensure that suitable support is being provided. All discussions should be documented in order to track progress and demonstrate any evidence of improvement or evidence of continuing underperformance. 7.6 Where there are exceptional circumstances that may warrant moving to a formal process more quickly, the line manager must consult with the HR Business Partner/ HR Officer for guidance before moving to the formal stage. 8. Procedure Formal Process 8.1 Stage 1 Part 1 - Setting performance objectives Where an employee continues to underperform and fails to reach the acceptable standard for their role, despite the informal guidance, support, development and assistance from the line manager, then the line manager will proceed to the formal process for managing employee performance The first stage of this process will be to invite the employee to a formal meeting at which the manager will outline the shortfall in performance, re-iterate the standards of performance which are required, discuss informal action and support which has been offered so far and explore any underlying reasons for the underperformance The line manager will invite the employee to a formal meeting, giving 7 calendar days written notice of the meeting and including details of: a) the procedure and stage of the procedure being used b) the identified shortfall in the employee s performance versus expectations of the role c) details of any informal action taken so far and any support given to the employee d) documentation supporting the management case of underperformance e) the employee s right to representation at formal meetings At the meeting the manager will explain to the employee: the areas of deficiency in performance which have been identified the improvement in work standard which is required 12 of 24

13 the possible consequences of not achieving the required standard the timescale for achieving the improvement The employee must be given an opportunity to answer these points and explain any difficulties they are experiencing and discuss ways to achieve the required improvement. These could include training, increased supervision, peer support, assessments, changes to duties or work patterns The manager will discuss and agree with the employee specific performance objectives which, if achieved will bring the employee s overall performance to the required standard. These will be monitored over a specified time period and will agree the support, training, or guidance required for the employee to achieve the objectives within the timeframe proposed. The timeframe must be reasonable and will be specific to the individual, based on the complexity of their role and the objectives being set. It is expected that at this initial stage the period of review will be at least 3 weeks and not normally more than 3 months The manager must set good, effective objectives, which are specific, to avoid ambiguity and which can be measured, in order to assess whether employee performance has improved. The objectives should focus on the areas of performance which are currently below the acceptable standard so that achievement of these objectives will bring the employee s performance to the required standard for the role The manager will explore if there are any underlying reasons for the underperformance as soon as possible. These may be issues related to health, a disability, family or other personal issues outside the workplace which are impacting the employee s ability to perform to the required standard. This knowledge can assist the manager to determine how best to proceed with the formal action on the guidance of their HR Officer/ HR Business Partner If, at this first formal meeting, an underlying health condition or disability is disclosed or suspected, the manager should consider whether a referral to Occupational Health may be required to understand the impact of the condition may have on the employee s performance. If a disability is involved, the manager must consider in conjunction with HR/Occupational Health, what adjustments to the role would be reasonable Following this meeting the line manager will confirm, in writing, to the employee the details of the discussion, including: the deficiencies in performance which were highlighted the standard required for the role the performance objectives which have been agreed to achieve the required standard any issues raised details of support agreed to help the employee achieve these performance objectives the consequences of not achieving the required standard the timeframe for improvement and when performance will be reviewed 13 of 24

14 8.2 Stage 1 Part 2 First Formal Review of Performance Based on the timescale outlined in the formal objective setting meeting, the line manager will arrange for a first formal review of performance, against the specific objectives set at the meeting The line manager will invite the employee to a First Formal Review meeting, giving 7 calendar days written notice of the meeting and including details of: Performance objectives agreed Any documented evidence or assessments on progress to date Details of any action plan and support given during this period of review Possible outcome of a First Formal Review meeting Employee right to representation at the meeting At the meeting, the manager will recap on the agreed performance objectives and discuss with the employee the progress against these objectives to date. The employee will have an opportunity to answer the points and explain any difficulties they have experienced in achieving the objectives and any further support they may require to achieve the required performance standard and the timescales for improvement If there has been insufficient improvement against the performance objectives and the required standard of performance is still not being achieved at the time of the First Formal Review meeting, then the manager may issue a First Written Warning to the employee. A first written warning will normally be for a maximum period of 12 months and will be kept on the employee s personal file Where a warning has been issued the employee will be advised of: The duration of the warning That a note will be kept on their personal file for the duration of the warning That this warning may be taken into account, by a future line manager/ hearing officer should the employee s performance continue to be unsatisfactory, or there is any act of misconduct under the Regulation of Conduct (disciplinary) procedure, during the life of this warning. That they have the right to appeal If performance has improved to a satisfactory standard at the First Formal review meeting, the employee will be informed that they have achieved the required standard and that this required standard must be sustained at a satisfactory level for a period of 6 months (or less if agreed by the line manager) from the date of the review. Failure to sustain the satisfactory level of performance for this duration will result in the employee returning to the same stage of the formal process and the line manager will arrange a formal review meeting and a first written warning may be issued to the employee. The employee will then continue into Stage 2 of the formal process Following the meeting, the line manager will confirm the outcome of the first formal review meeting, in writing, to the employee. The letter will detail the 14 of 24

15 discussion held about any continued deficiencies in performance, the expected improvement, any new agreed objectives to achieve the required standard, timescales for improvement, actions or support required and the outcome of the meeting, including any right to appeal. Any timescales must be reasonable and will be specific to the individual, based on the complexity of their role and the objectives being set. It is expected that at this stage the period of review will be at least 3 weeks and not normally more than 3 months 8.3 Stage 2 Part 1 Second Formal Review of Performance Where an employee did not reach a satisfactory standard of performance at stage 1 of the formal process and received a first written warning from the formal review meeting, then the manager will continue to monitor and evaluate the employee s performance against the performance objectives as part of stage 2 of the process and/or throughout the duration of the warning, whichever is the longer period After the first period for improvement has elapsed, as agreed at the first formal review meeting, the line manager will arrange for a second formal review of performance against the specific performance objectives The line manager will invite the employee to a Second Formal Review meeting, giving 7 calendar days written notice of the meeting and including details of: The areas of performance concern highlighted previously Performance objectives agreed Any documented evidence or assessments on progress to date Details of any action plan and support given during this period of review Possible outcome of a Second Formal Review meeting Employee right to representation at the meeting At the meeting, the manager will again outline the areas of deficiency in performance and the standard which is expected, recap on the agreed performance objectives and discuss with the employee the progress against these objectives to date. The employee will have an opportunity to answer the points and explain any difficulties they have experienced in achieving the objectives and any further support they may require to achieve the required performance standard and agree a timescale for improvement. The meeting should also explore what alternative options may be available to the employee such as permanent redeployment to an alternative role If performance has improved to a satisfactory standard at the Second Formal review meeting, the employee will be informed that they have achieved the required standard and that this required standard must be sustained at a satisfactory level for a period of 6 months (or less if agreed by the line manager) from the date of the review. Failure to sustain the satisfactory level of performance for this duration will result in the employee returning to the same stage of the formal process and the line manager will arrange a formal review meeting and a second written warning may be issued to the employee. The 15 of 24

16 employee will then continue into Stage 3 of the formal process with an action plan to achieve improvement If there has been insufficient improvement against the performance objectives and the required standard of performance is still not being achieved at the time of the Second Formal Review meeting, then the manager may issue a Final Written Warning to the employee. A final written warning will normally be for a maximum period of 12 months and will be kept on the employee personal file Where a warning has been issued the employee will be advised of: The duration of the warning That a note will be kept on their personal file for the duration of the warning That this warning may be taken into account, by a future line manager/ hearing officer should the employee s performance continue to be unsatisfactory, or there is any act of misconduct under the Regulation of Conduct (disciplinary) procedure, during the life of this warning. That they have the right to appeal If performance has improved to a satisfactory standard at the Second Formal review meeting, the employee will be informed that they have achieved the required standard and that this required standard must be sustained at a satisfactory level for a period of 6 months (or less if agreed by the line manager) from the date of the review. Failure to sustain the satisfactory level of performance for this duration will result in the employee returning to the same stage of the formal process and the line manager will arrange another formal review meeting and a second written warning may be issued to the employee. The employee will then continue into Stage 3 of the formal process Following the meeting, the line manager will confirm the outcome of the second formal review meeting, in writing, to the employee. The letter will detail the discussion held about any continued deficiencies in performance, the expected improvement, any new agreed objectives, timescales, actions or support required and the outcome of the meeting, including any right to appeal. The timeframe must be reasonable and will be specific to the individual, based on the complexity of their role and the objectives being set. It is expected that at this final stage, the period of review will be at least 3 weeks and not normally more than 3 months 8.4 Stage 2 Part 2 Exploring options Where an employee has failed to achieve a satisfactory level of performance at stage 2 of the formal process and has received a Final Written warning, the line manager should discuss alternative options with the employee Alternative options may include redeployment to another role within the Trust at the same pay band, but which has different duties which may be better suited to the employee s skill and capability. Redeployment to a role at a lower pay band should also be considered and in such cases of redeployment, pay protection of earnings will not apply. 16 of 24

17 8.4.3 Other alternatives which the line manager could explore are: A review of the role to remove some tasks and duties from the role and apply for a regarding of the role Offer the employee to step down to a more junior role within the same team, where applicable. In such cases of redeployment, pay protection of earnings will not apply Where a health condition or a disability has been identified which is impacting the employee s ability to do the role, the line manager must agree what adjustments are reasonable to ensure that these are implemented The employee should be encouraged to consider all alternative employment options within the Trust before the case is referred to the Final Formal Review stage. Human Resources will assist the manager in providing the employee with information about alternative roles in the Trust and can include the employee on any internal redeployment lists. This does not guarantee the employee an alternative role, but does ensure that suitable internal candidates are considered by hiring managers prior to making an external hire Human Resources can also assist the employee by offering support with interview skills and applications, if this would be beneficial to the employee The Line Manager should also consider if there is any further training which can be offered by the Trust, which would support the employee in securing a redeployment role The process of discussing and seeking alternative options with the employee will continue until the final formal review hearing has been completed. This should not delay the case from being referred to stage 3 of the formal process, provided there has been sufficient discussion and exploration of the options and the employee has been given a reasonable opportunity to seek alternatives. 8.5 Stage 3 Final Formal Review of Performance Where an employee has failed to reach a satisfactory standard of performance at stage 2 of the formal process and has received a final written warning from the formal review meeting, then the manager will continue to monitor and evaluate the employee s performance against the performance objectives for the period or review which was agreed at the second formal review meeting If performance has improved to a satisfactory standard within the last period of review after the second formal review meeting, the employee will be informed that they have achieved the required standard and that this required standard must be sustained at a satisfactory level for a period of 6 months (or less if agreed by the line manager) from the date of the review. Failure to sustain the satisfactory level of performance for this duration will result in the employee returning to the same stage of the formal process and the line manager will refer the matter to the Divisional Manager, or other Senior Manager with dismissing 17 of 24

18 rights, for a Final Formal Review meeting which will seek to bring a final resolution in this case If the level of performance still fails to meet the satisfactory standard after the specified timescale for improvement which was agreed at the Second Formal Review meeting, the line manager will refer the matter to the Divisional Manager, or other Senior Manager with dismissing rights, for a Final Formal Review meeting which will seek to bring a final resolution in this case and will prepare a management case report for the Divisional Manager (or other senior manager as outlined in 8.5.2) and refer the matter in readiness for the Final Formal Review hearing The Divisional Manager (or senior manager as outlined in 8.5.1) will act as a Hearing Officer in this matter and will invite the employee to a Final Formal Review meeting, giving 7 calendar days written notice of the meeting and including: Management case which includes performance objectives agreed, any documented evidence or assessments on progress to date, Details of any continued deficiencies in performance and the expected standard Details of any action plan and support given during the informal and formal process Information on possible outcomes of a Final Formal Review meeting Employee right to representation at the meeting At the meeting, the Hearing Officer will review the management case and accompanying documentation, including agreed performance objectives and outcomes from formal performance review meetings. The Hearing Officer will discuss with the employee the continued performance deficiencies and the support which has been offered during the process and explore any underlying reasons for underperformance. The employee will have an opportunity to answer the points and explain any difficulties they experienced in achieving the objectives. The Hearing Officer should also explore with the Line Manager and the employee what alternative options, such as redeployment, or adjustments under the DDA, have been considered during the formal process The Hearing Officer has the following options available to them at the Final Formal Review meeting: a) Extension of the improvement timescales to assist the employee to demonstrate satisfactory performance, where it is deemed that a slightly longer timeframe and additional support would significantly allow an improved performance level by the employee. b) Redeployment to an alternative role (including at a pay band lower than current role, see 8.4.2), where the employee s skill and capability matches a role which is currently available at the time of the Final Formal Review meeting. c) Dismissal from employment at the Trust, on the grounds of capability, as the employee is incapable of performing their role to the required standard. 18 of 24

19 8.5.7 The Hearing Officer must satisfy themselves that all possible options have been fully explored and all reasonable adjustments have been made (where applicable) before making the decision to dismiss an employee from employment If the Hearing Officer wishes to explore redeployment, then they will adjourn the Final Formal review hearing and request that the Line Manager in conjunction with Human Resources should explore with the employee, all the current suitable opportunities within the Trust before the final formal review hearing is reconvened. The Hearing Officer will set a reasonable timescale for this period If the Hearing Officer decides to grant the employee an extension of the timescale for improvement, the required standard and objectives to be achieved, along with additional support being offered and timescales for achievement, must be agreed and documented with the employee. The Hearing Officer will adjourn the Final Formal Review meeting and will agree to review the employee s performance at a reconvened Final Formal Review meeting at the end of the extended period If, after considering all the evidence at the Final Formal Review meeting or at the end of any extended period of time, the Hearing Officer finds that no significant performance improvement has been demonstrated and no alternative redeployment options are available, or have been declined by the employee, then dismissal will take place Where dismissal take place, the Hearing Officer will inform the employee of the reasons for dismissal, the date on which the employment contract will terminate and their right to appeal against the decision. Dismissal will be with any outstanding holiday pay accrued and contractual notice, although the employee may not be required to work their notice and may be paid in lieu of notice Following the meeting, the Hearing Officer will confirm the outcome of the final formal review hearing, in writing, to the employee. The letter will detail the discussion held about any continued deficiencies in performance against the expected standard, information about support which has been given to the employee, alternative options which have been fully explored and the outcome of the meeting, including details of the employee s right to appeal against the decision. 19 of 24

20 9. Appeal Procedure 9.1 Appeal against Warnings, Redeployments or Demotions At stages 1 & 2 of the formal process the line manager must tell the employee that they have the right to appeal against the decision made to issue them with a warning, redeployment or demotion as part of the formal process. The line manager must also inform the employee by when this appeal must be made and to whom it must be addressed. (This will normally be the manager of the Line Manager). This information will be included in the letter confirming the outcome of the Formal review meetings, which is sent to the employee within 7 calendar days of the review meeting The employee s appeal should be made in writing within 7 calendar days (excluding bank holidays) of the date of receipt of the letter confirming the outcome of the review meeting, clearly stating the grounds for appeal. Grounds for appeal can be that: New evidence or information has come to light The employee believes the procedure was not correctly applied The employee believes the sanction to be unfair. The manager responsible for hearing the appeal will seek clarification of the grounds for appeal if these are not clearly stated The appeal will normally be heard by the manager of the line manager who held the formal review meeting and should be held within 14 calendar days (excluding bank holidays) of the appeal being received or where this is not possible, within a mutually agreed timescale The manager hearing the appeal will confirm the arrangements in writing and the employee s right to be accompanied by a representative or by a colleague employed by the Trust (see 5.3 & 5.4). The manager hearing the appeal will be supported by a Human Resources Officer/ HR Business Partner The manager hearing the appeal may uphold the original decision, commute the original decision to a lesser sanction or give an extension on the timescale for improvement if it is deemed that a slightly longer timeframe and additional support would significantly allow an improved performance level by the employee The decision from the appeal hearing will be final. There will be no further right of appeal under this procedure and the Trust s Grievance Procedure may not be used in a frivolous or vexatious manner to circumvent these arrangements. 20 of 24

21 9.2 Appeal against Dismissal The Hearing Officer at a Final Formal Review meeting must tell the employee that they have the right to appeal against the decision to dismiss them, by when the appeal must be made and that it should be addressed to the Head of Human Resources. This information will also be included in the letter confirming the reasons for dismissal, sent to the employee within 7 calendar days of the hearing An employee s appeal should be made in writing within 14 calendar days of the date of receipt of the letter confirming the dismissal, clearly stating the grounds for appeal. The grounds for appeal can be that: New evidence or information has come to light The employee believes the procedure was not correctly applied The employee believes the sanction to be unfair. The Head of Human Resources will seek clarification on the grounds for appeal if these are not clearly stated The appeal will be heard by a panel consisting of: A non-executive Director (who will chair the appeal hearing) An Executive Director (not involved in the dismissal hearing) A senior Human Resources professional (not involved in the dismissal hearing or any formal review meetings associated with the case) The appeal hearing should take place within 14 calendar days of the letter of the appeal being received, or in exceptional circumstances where this is not possible, within a mutually agreed timescale. The Head of Human Resources will confirm the arrangements in writing and the employee s right to be accompanied by a representative or work colleague who is an employee of the Trust An appeal hearing may uphold the decision to dismiss on the grounds of capability; reinstate to employment at the Trust with either a demotion or a redeployment to an alternative role which is within the skills and capability of the individual or reinstate to the same role with a specific action plan for improvement which details: the current deficiencies in performance the required standard the objectives to be achieved the support to be offered from the Trust 21 of 24

22 the timescale for achievement Any decision taken at the Appeal panel will be confirmed in writing and sent to the employee within 7 calendar days, together with the typed notes of the appeal hearing Where an employee has been reinstated to offer an extended period for improvement, the matter will be referred back to the line manager for monitoring and supervision and the employee is placed back into the formal process at Stage 3 (see paragraph 8.5.9) at the point where an extension to the timeframe for improvement has been given by the Hearing Officer. The process will continue as per Stage 3 of the formal process laid out in this procedure and will continue to another Final Formal Review meeting to review the employee s performance once the new timescales have ended Where an employee has been reinstated but in a new role either at the same pay band or a lower pay band then this formal process is considered as closed and the appropriate line manager will need to set the employee new, specific objectives as required of the new role and in line with the role job description and give the individual the appropriate induction, training and support into the new role The decision from the appeal hearing will be final. There will be no further right of appeal under this procedure and the Trust s Grievance Procedure may not be used in a frivolous or vexatious manner to circumvent these arrangements. 10. Grievances raised during a Performance Process In the course of this procedure being followed there may be occasions where an employee wishes to raise a grievance that is related to their case, or the management of the process. Whenever a grievance is raised it may be advisable that the management of an employee s performance is put on hold so that the Grievance can be dealt with appropriately and in a timely manner in accordance with the arrangements outlined in Section 9 of the Trust s Grievance Procedure. Managers should seek advice from HR in this situation. However, employees may not use the Trust s Grievance Procedure to disrupt any informal or formal performance management process which is underway. 11. Sickness Absence during a Performance Process In the course of the procedure being followed there may be occasions where an employee is absent due to sickness which may or may not be related to the performance case. Whenever this occurs, the line manager should manage the sickness of the individual under the Sickness Absence Management Policy with the aim to supporting them with a return to work, as the performance concerns cannot be resolved until the individual is back at work. It may be appropriate to agree with the employee for a management referral to occupational health where the line manager can explain the situation. 22 of 24