Capability Process Guidance
Introduction These notes are intended purely as guidance notes. They should not be used instead of the capability procedure. The Need for a Capability Procedure The purpose of a good capability procedure is to help employees maintain the standards of performance required by the school, and to support those who are required to improve their performance fairly and consistently. It is important to distinguish between conduct and capability. The Principal should always ask whether it is reasonable to expect the member of staff to know what is expected of them in this instance. It is sometimes useful to ask the question Has this incident occurred because the employee can t do it right or because they won t do it right or is it because they don t care? In the latter two cases the matter is usually one of conduct and the disciplinary procedure should be followed. It is easy to make subjective assumptions so care must be taken at this early stage to make sure that there is good foundation to make the decision to go down the capability route. Involvement of Governors Wherever a potential situation arises, the school needs to be aware that governors should not be involved at the outset. It is important that the people who may have to be involved in a hearing of any capability case should not be tainted through prior involvement. Where it is the capability of the Principal that is in question the Chair of Governors with advice from the LA would instigate the procedure if it is considered necessary. All reference in this guidance to the role of the Principal in this case would fall to the Chair of Governors. If any of the governors have had any involvement in the capability issues of the employee then this must be taken into consideration and those governors excluded when setting up staffing and appeals panels. Informal Resolution The importance of informal counselling and guidance within the school at an early stage cannot be stressed enough.
Where routine monitoring identifies a need for improvement then the staff member should be told in a supportive environment and given help to improve. This informal support and help will often solve the problem without the need to enter into the formal procedure. The earlier a problem is identified and dealt with the more chance there is that improvement will follow. (Model letter 1). It is important even at this stage to ensure that clear targets are set out that the employee can achieve along with realistic timescales. It may be useful to use the action plan provided with the guidance notes as a way of recording and monitoring the process. However care should be taken not to extend this stage too long prior to entering the formal procedure as this can lead to a lack of real progress and frustration on behalf of colleagues and senior staff. It also increases the length of time that a staff member is providing a substandard service to the school. In the case of Teachers this will be detrimental to the learning of the pupils. It is important even at this stage in the process to ensure that clear documentation of discussions and agreed actions is made so that if there is no improvement in performance then there is evidence of the need to move into a formal procedure. The Formal Process If there has been no improvement through informal counselling and support and it has been decided that there is a need for the formal process to be started then the employee needs to be invited in writing to a formal interview to discuss the areas of concern and the actions needed to achieve the required standards [Model letter 2]. This should also let the employee know that they are entering a formal capability process and that they can bring either a colleague or a Trade Union representative with them to the meeting as support The First Formal Meeting The aim of the first formal meeting is to set out clearly the standards that the employee is currently achieving and what they are expected to achieve in their work. It should also aim to agree clear guidance on what support is going to be offered to help the employee achieve the standards expected. It also needs to be made clear to the employee at this meeting that their job is at risk if they do not improve. During the first meeting all of the following areas need to be discussed
Prioritise -If there are many areas of concern then it may be beneficial to prioritise which areas should be tackled first with the understanding that the other areas will be addressed once some progress is made in the priority areas. Support - Once the areas of concern are set out the employee should be encouraged to explain the difficulties that they are having and suggest support that they need. As the person 3.24 experiencing these difficulties they may be able to best identify the type of support which would be beneficial. All suggestions from the employee should be considered but those which are unrealistic or impractical can be refused, providing the employee is informed of the reason. Any other suggestions of support can be discussed and agreement reached on what support the school will provide to help the employee reach the desired level. It is usually helpful to arrange for a mentor to be put in place for the employee to act as support throughout the process, someone who can professional knowledge and expertise to assist the employee in reaching their targets. Timescales - Realistic and reasonable timescales should be allowed for improvement. The employee must have the opportunity to benefit from the support agreed upon and demonstrate improved performance. Shorter timescales may reasonably be set for employees undertaking routine jobs with short cycles of events than, e.g., for a teaching department head whose work involves complex planning processes which take longer to complete and assess. Normally, timescales set will be between four weeks and two school terms. Timescales set may be subsequently extended. Monitoring Regular monitoring and assessment is necessary to ensure that progress is being made. Monitoring should take place regularly and could involve some occasional assessment by an outside adviser as well as an internal monitor. It is important that feedback from the monitoring is given promptly and supportively. The employee needs to be made aware at this meeting of the steps being taken to monitor them. Action Plans - It is good practice to use action plans setting out specifically what is to be achieved by when what support will be available, and how progress will be monitored. Review dates should be planned in advance. An example of an action plan is attached (appendix 1). Record Keeping The employee needs to be made aware that records will be made of any discussions that take place during the process. Any monitoring that takes place will be recorded and fed back to the individual After the meeting a letter must be sent to the employee detailing what was agreed at the meeting. This should also formally warn the employee that failure to meet the required improvements could put their job at risk.(model letter 2)
Review Meetings A review meeting should be set up at regular intervals during the timescale approximately every month or half term. During these meetings an assessment should be made of the improvements made and general progress of the process. Monitoring reports should be circulated prior to the meeting and their content considered along with the views of the staff member. If during the review meetings it becomes clear that the extra support and guidance has not been provided then extension of the timescale should be considered. Plan well for these meetings and invite another appropriate person to accompany you and take confidential notes. Improvement Any improvement should be fed back to the employee at the review meeting. If they achieve the targets expected of them prior to the end of the timescales originally set in the first meeting then it is possible to suspend or withdraw the capability process at this stage. If the improvement is not sustained at this point then the procedure can be suspended with the understanding that if their performance deteriorates again within a particular timescale (which should be established and be for no longer than one year) the procedure will be re-invoked at the current stage. Once there is satisfaction that the employee is maintaining the improvements in performance, he/she may be withdrawn from the procedure. 3.25 The decision on whether to suspend or withdraw the procedure may vary dependent on the stage of the procedure that has been reached. It may be pertinent to withdraw the procedure in respect of an employee who has responded by making the required improvements early on in the procedure. However more evidence of maintained improvement may be needed before withdrawing the procedure in respect of an employee who has received a final written warning. No/Insufficient Improvement If there has been no improvement or the improvement is insufficient to allow the employee to reach the standards expected of them within the timescales set then this needs to be made clear to the employee at the review meeting. If this is the case then it needs to be made clear to the employee that they have not achieved any improvement, the standards that they still need to
achieve and again they will need to be warned that failure to improve to the required standards will put their job at risk. All review meetings should be followed up in writing to confirm what was discussed during the meeting and to confirm any warnings that they may have been given with regards to their future employment. [Model letters 3/4] If a warning is issued then it is important that the employee is given the right to appeal the decision and the appeals process detailed below should be followed. The end of the review process If the employee reaches the end of the timescale given to improve without having the process suspended or ended because they have met their targets then it will be necessary to hold a meeting to discuss the final outcome of the improvement programme. (Model letter 5). If targets have now been achieved then the Head should explain that the process is finished and confirm this in writing. If the improvement has not been achieved the Principal should write to the member of staff advising that there are still outstanding issues of concern and that this meeting is to consider the need to refer the matter to the appropriate committee of the Governing body. They should be informed of the precise nature of the problems outstanding in the letter inviting them to the meeting and sent copies of any pertinent monitoring reports that may need to be discussed. This letter needs to clearly state the fact that the required improvement has not been forthcoming and that serious consideration is to be given to their continuing employment. At the meeting it is essential to show that matters have been fully investigated and appropriate action taken and that with all the additional help and support the employee is still unable to meet the level of competence required if this is the case. The Principal should state why he/she is of the view that the employee is incapable of performing in the job and all details should be discussed. The member of staff should be given an opportunity to respond. The Principal should then adjourn the meeting to consider all the facts and the responses given by the employee. If the target is not reached a decision should be made as to the advisability of extending the monitoring period (but only where agreed help and support has not been provided). Alternatively, the matter should be referred to the appropriate committee of the Governing Body to hear a case of lack of capability.
Following the adjournment it should be clearly stated that in the latter case dismissal on the grounds of capability is a possible outcome. Confirmation in writing will be sent to the member of staff and his/her representative. In the case of failure to reach a satisfactory level of performance a final written warning will usually be appropriate and notification that referral to the Governing Body committee will now be necessary should be given.[model Letters 6/7]. This letter should Clearly state the reason for the referral to a staffing panel and the possible consequences in employment terms for the employee Explain the employee right to representation Give arrangements for the hearing i.e. date, time, etc Accompanying the letter should be an outline of the case which is going to be presented, this should include any documents that are going to be used during the hearing. Although, if necessary, the accompanying correspondence may follow at a later date. The employee may wish to submit written information as part of his/her representations. It is important to ask for this by a specific date (no later than 24 hours prior to the hearing) so that it can be circulated in advance. All this information should be distributed to the panel that is going to hear the case preferably in advance of the hearing. The Capability Hearing The capability hearing is a formal hearing that is heard by a panel of Governors. The person bringing the case should ensure that: There are separate waiting rooms for the panel, the person presenting the case and the person who is the subject of the capability hearing Refreshments are available There are sufficient chairs and table space for the panel, the employee and representative, and the person representing the school in the disciplinary hearing, because paperwork will have to be studied and notes may need to be taken.
All members of the panel will be available for as long as the hearing will take. Where an employee notifies the panel hearing the case that she/he is unable to attend the hearing, careful consideration should be given to the reasons for non-attendance before a decision about whether to not to proceed is made. Where an adjournment of a short duration will enable the employee to attend, all reasonable steps to accommodate should be taken. It may be that in some cases the employee may wish for a representative to attend in their place and this should be allowed. Format of Hearing The Chair of the Panel will call in all parties to make the introductions and explain the reasons why the meeting is taking place and the format it will take. 1. The person bringing the case will present the case to the panel, calling witnesses as necessary. 2. The employee can ask questions of the person bring the case and any witnesses. 3. The panel may also ask questions of the person bring the case and any witnesses. 4. The employee or his/her representative will then put his/her case forward. 5. The person bringing the case can then ask questions of the employee. 6. The Panel can then ask questions of the employee. 7. Both parties may sum up, the person brining the case first and the employee second. 8. The Panel will then adjourn to take its decision. If at any stage during the hearing it appears that not all the facts are known or the panel decides that it requires further information which is not available at the time, it may decide to adjourn the hearing and reconvene at a later date. The Chair may call for an adjournment at anytime if she/he thinks it is appropriate. Making a Decision When making the decision the panel of governors need to take into consideration several things Whether there is evidence that the employee s performance falls below the standard required
What improvement in performance if at all has been made by the employee and how far does this then fall short of the required standards Whether appropriate support has been given by the school within the process Whether appropriate targets and timescales have been set to allow the employee an opportunity to improve Whether sufficient warning has been given to the employee that their job may be at risk if they do not improve Once all these things have been considered the panel of governors need to decide 1. to dismiss the employee giving them the notice required by their contract of employment [Model letter 8] 2. to return the employee to an earlier stage in the process and give them sufficient time/support to allow continued improvement 3. to remove the employee from the process if they do not feel that further improvement is required Any decision should be fed back to the employee and followed up in writing. The employee should also be advised that they have the right to appeal any decision that has been made within 10 working days of receiving written confirmation of the panel s decision. The Appeals Process The appeal hearing will be conducted by a panel of governors who have not previously been involved. Again, all information should be submitted prior to the hearing. The format as detailed in the appeals process will be used. The Chair of the original staffing panel who made the decision now subject to appeal will present the findings of the original hearing and the reasons for the decision. Any additional evidence that may have arisen during the appeal period may be produced. [Model Letter 9] The outcome could be that the decision taken by the original panel could be changed and the employee reinstated, returned to an earlier stage of the process or removed from the process altogether [Model Letter 10] The outcome of the appeal is final and there is not further internal right of appeal Confidentiality Confidentiality is vitally important to provide all parties concerned with a degree of sensitivity and to ensure that all procedural aspects are dealt
with sympathetically, impartially and objectively. Any breaches of confidentiality will be treated seriously and may result in disciplinary action. Support for the employees It is important to be aware that throughout any process such as this considerable stress will be felt not only by the individual raising the issues but also by any other individuals who have had the allegations made against them. Similarly other members of the team /school may also find the situation difficult. 1. Employee Assistance Programme All individuals involved should be given the details of the School s employee assistance programme (EAP), which is a completely independent counselling and information service provided by the School free of charge. Employees can approach the EAP and discuss any worries that they may have in a completely confidential setting. The EAP service is available 24 hours a day, 365 days a year. 2. Union support All members of staff should be encouraged to speak to their union who can offer support to them, not only with advice but also with support and representation at investigation meetings 3. Occupational Health If any of the individuals are absent through stress then they should be referred to the Occupational Health Department who can support them through the period of absence and ensure that any return to work is appropriate. Occupational Health can also assess whether the individuals are able to take part in the ongoing investigation during their period of absence. Similarly if you feel that any individual is severely affected by the situation a referral to Occupational Health should be considered to ensure that they are coping effectively with the situation.