Managing Poor Performance and Capability Policy

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1 Managing Poor Performance and Capability Policy Page 1

2 Managing Poor Performance and Capability Policy Policy ref no: HR Author (inc job Judith Champion, Senior HR Business Partner title) Date Approved May 2014 Approved by Quality and Assurance Group Date of next May 2017 review How is policy to All staff be disseminated Check list for Governing Body/approving committee Has an equality impact assessment been compiled? Has legal advice been sought Have training issues been considered? Have any financial issues been considered? Will implementation be monitored? Is there a cascade mechanism in place to communicate the policy? - with staff - with patients - with the public Are there linked policies / procedures? No Page 2

3 Contents 1 Introduction What are the Key Principles? What are my Rights as a Member of staff? What is the Role of my Manager? How is Poor Performance Identified? What is the Procedure? Acts of Gross Incapability How do I Appeal? What if I am Redeployed into a Lower Banded Position? Monitoring of implementation Statement of Compliance with the Equality Act Review...12 Appendix 1 Informal/Formal Action Plan to Address Capability...13 Appendix 2 Capability Policy and Procedure Flow Chart (Excluding Acts of Gross Incapability)...15 Appendix 3 Guidance for Formal Hearings for Acts of Potential Gross Incapability...16 Page 3

4 1 Introduction Bristol Clinical Commissioning Group is committed to providing high quality care through the effective management and development of all its members of staff and believes that the effective management of staff performance is an essential part of this. The organisation is committed to maximising staff potential by improving and maintaining their development and capability, providing a system whereby poor staff performance can be addressed in a positive manner, for example by providing training and development opportunities and support without necessarily resorting to the Disciplinary Policy and Procedure. It is the organisation s objective that all staff should have a clear up to date Job Description and Person Specification as well clear objectives set at each performance development review meeting and a clear understanding of the level of competence required for their role. (Please also refer to the CCG s Performance Management and Development Framework). The purpose of this policy is to provide clear, fair and consistent methods of addressing poor performance. For the Purpose of this policy, capability is defined as: The gap between the organisation s expectations of the job-holder in respect of their job role, as defined by the Job Description, Person Specification, objectives and competence and the member of staff s actual performance in their job. Poor performance that is caused by carelessness, negligence or idleness on the part of the member of staff, or inadequacy in terms of behaviour or attitude will be dealt with in accordance with the organisation s Disciplinary Policy. If poor performance is not connected to one of these reasons, the procedure below will apply. 2 What are the Key Principles? The policy is based on the following principles: 1. Managers are developed and trained to manage the competence and development of their staff and where possible to sensitively address issues of capability. 2. Poor performance should be dealt with promptly and staff should be given regular feedback on their performance. 3. All members of staff will have the right to be accompanied by a Trade Union representation or colleague from stage one of the procedure onwards (all formal stages of this policy). 4. Managers will provide a clear explanation to the member of staff of where they are not meeting the required standards of their job and will allow an appropriate timescale to give the member of staff the opportunity to address their poor performance. 5. In accordance with Paragraph 6.28 of the NHS Terms and Conditions Handbook, where significant weaknesses in performance in the current post have been identified, discussed and documented with the staff member concerned and have not been resolved, despite opportunities for Page 4

5 appropriate training/development and support, exceptionally, pay progression may be deferred at any pay point until the problems are resolved. Significant weaknesses are those which prevent a staff member from continuing to perform consistently across a recognised normal workload. 6. The safety of the public, patients and other staff members should always be taken into consideration should there be a shortfall in a member of staffs performance and steps should be taken to minimise these risks 7. Performance issues will be managed to mitigate undermining the CCG s strategic aims for tackling health inequalities, eliminating unlawful discrimination and advancing equality of opportunity for patients, service users and employees. 3 What are my Rights as a Member of staff? 1. You must be provided with the right to be accompanied at all formal meetings by a Trade Union representative or a colleague not working in a legal capacity. (Stages 1-3 of the procedure). 2. You must be provided with the opportunity to receive additional support from the Staff Counsellor / Occupational Health Department. (At stages 1-3 of the procedure) if applicable. 3. You must be given an explanation of where you are not meeting expectations of your job, and have access to evidence based examples. 4. You must receive an explanation of the process that will be adopted to address your poor performance and what the potential outcomes may be and your manager will note this explanation on your supervision form. 5. You must be given the opportunity to comment on the performance issues that have been identified. 6. You must be given the opportunity to address your performance and be offered the appropriate support (including an agreed mentor where applicable, training/development opportunities) and reasonable time to improve 7. You must be involved with preparing a development plan that should be realistic and achievable with your manager. 8. Where redeployment is sought, you will be treated as at risk and assisted by a member of the Human Resource Department in seeking another post. A trial period of four weeks will be offered to all redeployed staff in accordance with the organisation s Redeployment Policy. 4 What is the Role of my Manager? 1. It is your manager s responsibility to recognise poor performance and address it in accordance with this policy and procedure. 2. Your manager must ensure that the required standards and expectations of your job are described in a current job description and through your objectives, and that these expectations and objectives are explained to you. You and your Manager should review your job description annually as part Page 5

6 of your Performance Development Review. You and your manager should also review your progress against the competence framework for your role. 3. Your manager must address issues of poor performance in a timely, fair and non-biased way. 4. Where performance is related to a professional qualification, an appropriately qualified manager should address the standards, specifically those that required by the professional body. 5. Organisational change should be acknowledged, as an important factor affecting required standards of performance. Your manager must consult you on the effects of organisational change and development and provide you with appropriate training in your new role if applicable. 6. Where you have been given the opportunity to improve but have been unable to meet the required standard, your manager may recommend that you should; have your pay progression suspended, be redeployed to an available vacant post (this may include downgrading without protection), or have your contract terminated on the grounds of incapability. However redeployment will not be considered until stage 3 of the policy. 7. Managers have a responsibility to create an inclusive work environment which values workforce diversity and which recognises that different individuals may have different needs and preferences in order to enable effective performance. 8. Managers have a duty to avoid any negative pre judgements about performance which might be linked to a protected characteristic. 5 How is Poor Performance Identified? The list below identifies some factors that may need to be taken into consideration before the capability procedure is adopted. In some cases, managers may wish to address certain factors as separate issues. This list is not exhaustive. Personal problems Work overload causing stress/fatigue or unrealistic targets/deadlines Health (physical or mental)* Organisational change Deliberate intention to under perform Lack of supervision and / or level of supervision needed Level of appropriate equipment/resources/facilities and its availability Inadequate or insufficient training/development PDR discussion/progress against competencies and objectives Duration of poor performance Communication of standards Lack of understanding of job duties/responsibilities Page 6

7 Identify anything within in working relationships or the working environment which may be impacting on performance. Failure to comply with payroll deadlines and procedures * Appropriate consideration should be given to reasonable adjustments, which may be required, where an individual is deemed to have a disability in line with the Equality Act Advice should be sought on this matter from HR/Occupational Health prior to the application of this policy and procedure. (See also the Sickness Absence Policy) 6 What is the Procedure? Your immediate line manager with advice and support from the HR Department must adopt the procedure detailed in section 6. If for any reason you are absent from work due to sick leave or annual leave the performance monitoring process may be paused until you return. If the Line Manager carrying out the performance management process is absent due to sick leave it may be appropriate that another Manager temporarily picks up the performance management process and supports individuals in the achievement of their set objectives. 6.1 Informal Performance Management Stage Before any formal stage is adopted, your manager should attempt to resolve any issues relating to your poor performance informally through discussion with you. This may be done for example through your 1:1 s or regular meetings Robust and detailed objectives will be agreed with you for achievement. If necessary a plan will be developed to achieve each objective if a foundation level of achievement is required before the full objective can be achieved. Appropriate timescales must be drawn up for you to achieve the targets set. At the informal stage the timeframe is likely to be between 4 and 6 weeks If your poor performance cannot be resolved informally, then your manager may proceed through the formal stages of the Capability Procedure. Your manager will explain the procedure to you and will seek advice and/or guidance from their HR department. If you are removed from the informal stage of the policy due to successfully meeting the objectives set Bristol CCG expects you to maintain a satisfactory level of performance moving forward. If your performance falls below a satisfactory level within 24 months of being removed from the informal stage of the policy the performance management process will be commenced at the first formal stage of the policy. 6.2 Stage 1 First Written Warning Your manager will arrange a formal meeting with you. Prior notification of the meeting will be provided to you in writing and a copy of this procedure will accompany the letter. The letter will provide a clear explanation of the Page 7

8 issues requiring discussion and will offer you the right to be accompanied at the meeting by a Trade Union representative or a colleague not acting in a legal capacity. At the meeting: Your manager will clearly explain the issues/problems and consequences of poor performance. This should include clear examples of where your performance has not met the required standards. The meeting will allow you the opportunity to comment on your performance assessment and to provide an explanation. You will also be able to indicate what assistance you feel you need, if any, to improve your performance. Your manager will arrange any necessary support, including any reasonable adjustments that may assist your improvement. Your manager will identify the improvement required and you will both agree an appropriate action plan. You will also agree any involvement from others that you may need in achieving the action plan. You and your manager will agree a reasonable timescale for reaching the required improvement and a review date will be set. This is likely to be between 6 and 8 weeks. You will be issued with a first written warning at the meeting and this will be live on your file for 12 months from the date it is issued. Your pay progression may be suspended at this point if you are not at the top of your band until you are signed off the formal process. A record of the meeting and your action plan (See Appendix 1, page 1) will be kept by your manager and should also be kept by you. Your manager will send you a letter confirming the actions agreed at the meeting, the review arrangements and details of the first written warning. You will also be provided with a copy of the action plan. Your letter will also inform you of the possible consequences of failure to reach the satisfactory improvement level/standards. The First Formal Review Meeting As above, your manager will arrange a formal review meeting with you, and will confirm the details in writing towards the end of the monitoring period. At the meeting: You will discuss your performance in accordance with your development programme. If your performance has reached a satisfactory standard, you will be advised that no further action needs to be taken. You will be expected to maintain this level of performance. Details of your improved performance will be noted on page 2 of your capability record (Appendix 1, page 2) and confirmed in writing to you with a copy to your representative as applicable. The record and the formal written warning will be placed on your personal file for 12 months. Page 8

9 Should your performance slip below the expected standards within 24 months you will be required to start at stage 1 of the formal procedure. If a satisfactory improvement has not been achieved during the first formal monitoring period a meeting will be convened to progress to stage 2 of the formal procedure. 6.3 Stage 2 Final Formal Warning Your manager will review your progress against your development plan with you and explain where you have failed to meet the required standard of performance. You will be given the opportunity to comment and provide an explanation. Your manager will advise you of the consequences of continued failure to achieve the required standards and will issue you with a final written warning. You will be issued with a final written warning at the meeting and this will be live on your file for 24 months from the date it is issued. Your pay progression may be suspended at this point if you are not at the top of your pay band until you are signed off the formal process. Your manager will agree a further action plan with you, including a time period and review date for reaching the satisfactory standard. This is likely to be between 6 and 8 weeks. You will be provided with further support and advice to assist you to meet the required standard. Your manager will provide you with formal confirmation of the corrective action, the agreed time period in writing, a copy of page 2 of the capability record (Appendix 1, page 2) and the final formal written warning. Your letter will also confirm your review date and inform you that failure to reach the satisfactory improvement level/standards by the review date could result in your dismissal on grounds of capability. The Second Formal Review Meeting As above, your manager will arrange a formal review meeting with you, and will confirm the details in writing towards the end of the monitoring period. At the meeting: Following the agreed time period, your manager will arrange a formal meeting with you. You will discuss your performance in accordance with your development programme set at the stage 2 meeting. If your performance has reached a satisfactory standard or your improvement has been satisfactory, you will be advised that no further action needs to be taken. Details of the improved performance will be noted on page 2 of your capability record (Appendix 1, page 2) and confirmed in writing to you with a copy to your representative as applicable. Page 9

10 The record and the final written warning will remain on your file for 24 months from the date it was issued. Should your performance deteriorate within 24 months of being signed off, the formal process will restart the beginning of stage 2. Where standards of improvement are not achieved and it is apparent that the required level of performance cannot be sustained, the following action will take place: Your failure to meet the required satisfactory standards will be discussed with you and you will be provided with the opportunity to comment. Your manager will explain that the matter will be referred to an appropriate senior manager with delegated authority to dismiss for a decision to be made, from which the following outcomes are possible: You may be allowed further time for improvement and/or provided with new objectives Redeployment due to capability should an alternative post be available to you that is within your skill set. Pay protection will not apply should redeployment be to a lower banded/paid post. You may be dismissed on the grounds of capability. Your manager will prepare a summary report and relevant documentation. Your manager can seek independent professional advice if deemed necessary. The report will be passed to the identified senior manager with delegated authority to dismiss so a stage 3 hearing can take place. A copy of the report will be provided to you. 6.4 Stage 3 Capability Hearing At the end of the stage 2 monitoring period if there has not been the required sustained improvement a stage 3 capability hearing will be arranged. A hearing will be arranged for an identified senior manager and a senior member of the Human Resources Department to meet with you under stage 3 of the formal process. You will be given at least 10 day s notice of the stage 3 hearing and will be informed in writing that a possible outcome is dismissal on the grounds of capability. You will be given the opportunity to submit to a statement of case to be considered at the stage 3 hearing. This should be submitted at least 5 days before the hearing. You will be entitled to be accompanied by a colleague not acting in a legal capacity or a Trade Union Representative. It may also be necessary for the senior manager to be supported by a professional advisor. Page 10

11 The purpose of this meeting will be to consider objectively the facts of the matter and to hear comments from you and your manager before a final decision is made about your continued employment. The summary report and any statement of case you have submitted will be reviewed with you and you will be given the opportunity to comment. It may be necessary to ask questions of clarification from you and your manager before a decision can be made. The hearing may be adjourned for the decision to be made and then you will be advised of the outcome and associated arrangements. The outcome will be confirmed in writing and you will be informed of your right of appeal. All paperwork will be kept on record for a maximum of 2 years should stage three of the process be invoked. In the interest of patient safety it may be necessary to extend this time limit. 7 Acts of Gross Incapability Where an employee commits an act of gross incapability which is so serious as to endanger the welfare and safety of patients, service users or colleagues a full investigation will take place. Should the investigation conclude that it is likely an act of gross incapability has occurred a formal capability hearing for gross incapability should take place. While the investigation is being conducted it may be necessary to suspend a member of staff from duty. This action is not intended to be a punitive measure and should be only taken as a last resort after all other options such as temporary redeployment have been explored. Appendix 3 outlines the full details of formal hearings of this nature. 8 How do I Appeal? Appeals will be heard in accordance with the organisation s Appeals Procedure. 9 What if I am Redeployed into a Lower Banded Position? Pay protection arrangements do not apply to staff who are redeployed to a position which attracts less earnings as a result of their lack of capability to perform in the higher earnings post. 10 Monitoring of implementation The CSU will monitor all performance management cases that are being undertaken at the formal stages of the policy. Where required the CSU will be able to provide a report to the CCG on the number of cases and where appropriate details regarding the individual case. The CSU will also be able to identify any differential outcomes related to key protected characteristics and any factors contributing to poor individual performance which are relevant to any protected characteristics. Page 11

12 11 Statement of Compliance with the Equality Act 2010 All relevant persons are required to comply with this document and must demonstrate sensitivity and competence in relation to the nine protected characteristics as defined by the Equality Act The Act prohibits discrimination on the basis of age, disability, gender reassignment, marriage/civil partnership, pregnancy/maternity, race, religion/belief, sex or sexual orientation. It also means that each manager or member of staff involved in implementing the policy must have due regard to the need to: eliminate unlawful discrimination, harassment, victimisation; advance equality of opportunity between those who share a protected characteristic and those who do not; and foster good relations between people who share a protected characteristic and those who do not. If you, or any other groups, believe you are disadvantaged by anything contained in this document please contact the Document Lead (author) who will then actively respond to the enquiry 12 Review This policy will be reviewed every 3 years but can be reviewed at any time if the CCG deems it necessary to do so or a review is requested by management or staff. Jude Champion Senior HR Business Partner March 2014 Page 12

13 Appendix 1 Informal/Formal Action Plan to Address Capability Identified Problem Action Evidence Required of Improved Performance Review Method Review Timescale e.g. 1 month Manager s Name: Manager s Signature: Date: Employee Name: Employee Signature: Date: Page 13

14 Informal/Formal Action Plan to Address Capability - Review Meeting. Identified Problem Notes of Review Meeting Manager s Name: Manager s Signature: Date: Employee Name: Employee Signature: Date: Page 14

15 Appendix 2 Capability Policy and Procedure Flow Chart (Excluding Acts of Gross Incapability) Manager Recognises Poor Work Performance of Employee Refer to the Disciplinary Policy Is it a Disciplinary Issue? No Refer to the Capability Policy No further action required. Discussion with the employee about the job requirements and shortfall in current work performance Does performance improve? No No further action required. Stage 1: Meeting with Manager, member of the HR Department, the Employee and their Trade Union Representative. Objectives and timescale for improvement are Does performance improve? No No further action required. Stage 2: Meeting objectives and timescales for improvement are set out in writing Does performance improve? No No further action required. Review Meeting: Has performance improved? No Stage 3: Refer to Senior Manager for consideration More time and new objectives Redeployment Dismissal on grounds of capability (with appropriate level of authorisation) Page 15

16 Appendix 3 Guidance for Formal Hearings for Acts of Potential Gross Incapability 1. Who should be on the panel for a formal capability hearing for gross incapability? A Chair of the Panel who should normally be more senior than the Investigating Officer A Human Resources professional. One other senior manager of an appropriate level may also attend. When necessary an appropriate professional advisor should be included. The composition of the Panel is important in terms of gender, race, disability, age, religion and sexual orientation and forethought should be given to this mix when deciding who should sit on the Panel. 2. Who will present the Management Case? The Investigating Officer will present the Management Case to the panel. Witnesses may be called in support of the Management Case. The Investigating Officer must notify the Panel and the subject of the investigation if they wish to call any witnesses in support of their case. 3. Who will present the Member of Staffs Case? The employee who is the subject of the hearing. They may also be accompanied by a representative of a recognised trade union or a fellow worker who may present on their behalf. Witnesses may be called in support of the employee s case. The employee must notify the Panel in advance if they wish to call any witnesses in support of their case. It is the employee s responsibility to arrange the attendance of their witnesses at the hearing. 4. How will the hearing be arranged? Once the decision has been made to convene a formal hearing under this procedure this must be confirmed in writing. The letter to the member of staff should include the following information. The date, time and venue of the meeting. [At least 10 days notice will be given]. The fact that this is a formal hearing under the Capability Procedure. The nature of the allegation. Who will be on the Panel to hear the evidence. Who will be presenting the Management Case (including any witnesses attending). The fact that the outcome of the formal hearing may be dismissal. That they may be accompanied by a representative from a recognised Trade Union or by a fellow worker. Page 16

17 A copy of the Management Case [report of the outcome of the investigation] will be enclosed with the letter. This will include copies of statements relating to the case. Ask if there any special requirements such as the need for language facilities (interpreter), etc. The date that their response to the allegations (their case) must be submitted to the panel by (5 working days before the hearing). Should the employee wish to submit a response to the allegations (their case) for the panel to consider this should be submitted at least 5 working days prior to the hearing. If an employee s companion cannot attend on the proposed date, another date may be suggested. If the accused refuses to attend the hearing, or cannot provide a substantial reason why they are unable to attend, it must be made clear to them that the hearing will still continue in their absence and a record kept of the reasons for this non-attendance. The member of staff should seek guidance on how to compile a response to the allegation (their case). This may be sought from the Trade Union Representative if they are a member or from a fellow worker. Briefly, the member of staff should include the following information in their case: A specific response to the allegation. This should be concise and refer to any supporting documents or statements in the appendices. Pages should be numbered and a contents page added at the front of the pack. No new information should be provided at this stage. 5. Arranging information packs for the hearing: All members of the Panel and the Management Side will receive identical packs to that already sent to the employee and their representative containing the Management Side Case and the employee s response two days before the agreed date of the Hearing. The employee should inform the Panel Chair of the names of any witnesses who they will be calling to the hearing. Likewise, the Investigating Officer should inform the Panel Chair of the names of any witnesses who they will be calling to the hearing. No new information can be submitted at this stage or during the hearing. 6. What happens at a Formal Hearing for Gross incapability under the Capability Procedure? The manager will be asked to summarise the key points of the written statement of case and call witnesses in the presence of the member of staff and his/her representative. a) The members of the Panel shall have the opportunity to ask questions of the manager and his/her witnesses. b) The member of staff or their representative shall have the opportunity to ask questions of the manager and his/her witnesses. c) The manager shall have the opportunity to re-examine his or her witnesses on any matter referred to in their examination by members of the Panel, the member of staff or the member of staffs representative. d) The member of staff or their representative [i.e. Trade Union representative or fellow worker] shall put his or her case in the presence of the manager. Page 17

18 e) The members of the Panel shall have the opportunity to ask questions of the member of staff, the member of staffs representative or witnesses. f) The manager shall have the opportunity to ask questions of the member of staff and their representative and witnesses. g) The member of staff or their representative shall have the opportunity to reexamine his or her witnesses on any matter referred to in their examination by members of the Panel or the organisation's representative. h) The manager and the member of staff or the member of staffs representative shall have the opportunity to sum up their cases if they so wish. The member of staff or their representative shall have the right to speak last. In their summing-up, neither party may introduce any new information. i) The Panel may at its discretion adjourn the hearing at any point in order that either party may produce further evidence or for any other substantial reason. At this point the manager, the member of staff and the member of staff s representative shall withdraw. j) The Panel advised by the Human Resources Adviser, shall deliberate in private only recalling both parties to clear points of uncertainty on the evidence already given. If recall is necessary, both parties shall return, even if only one of them is concerned with the point that has given rise to doubt. k) Witnesses will normally be asked to leave the hearing at the conclusion of their evidence and the Panel Chairman will indicate whether they should remain available for the duration of the hearing in case it is necessary to recall them. 9. Decisions of the Panel The decision of the Panel, and the reasons for reaching that decision, will normally be announced at the end of the Hearing. If, due to reasons such as the amount of information presented or time constraints, etc., the panel may decide to adjourn the meeting to consider their decision and inform the employee of the outcome in writing. Decisions and the reasons for those decisions will be confirmed in writing. The written confirmation, which will be from the chair of the panel, should include: Date, time and venue of the hearing. Who was present. The nature of the allegations. The decision of the Panel. The reasons for the decision. Reference to previous warnings if relevant. The implications of the decision. In the cases of dismissal due to gross incapability details of the right of appeal under the organisation s Appeals Procedure should also be included (and enclose a copy of the Appeals Policy). Page 18

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