Human Resources Policy Policy Title : Management of Employee Capability Policy Section : Managing Difficulties Prepared by : Human Resources Review / development group composition: HR Policy Development Team; Staff Side; General Manager Version number : V1.4 Approved by : Area Partnership Forum Date approved : June 2008 Review date : No later than 3 years from date approved Cross reference to: Signed : Management of Employee Conduct Policy; Grievance Policy; Redeployment Policy; Appraisal, PDP and Review Policy; OHS Referrals Policy; Flexible Working Requests Chief Executive and Employee Director
CONTENTS Section Page Policy statement Introduction 3 Principles and aims 3 Scope 4 Protocol 1 Definitions 5 2 Initial approach 5 3 Responding to a capability issue 6 3.1 Achieving improvement 7 3.2 Outcome of informal discussion 8 4 Formal process 8 4.1 Representation 9 4.2 Stage 1 9 4.3 Stage 2 10 4.4 Stage 3 (dismissal) 11 4.4.1 Termination on the grounds of capability (Ill-health) 5 Appeals 12 6 Monitoring and evaluation of policy 13 7 Training 13 8 Summary of roles and responsibilities 14 Policy Working Group members 15 Appendix 1 Management of Employee Capability - process route map 17 2
Management of employee capability policy statement Introduction It is the aim of the NHS Borders to ensure that all employees are treated in a fair and equitable manner. Employees are required to perform the duties of their post to an acceptable standard e.g. the agreed level detailed in their Knowledge and Skills Framework (KSF) Post Outline. Where this standard is not met, employees will be offered support, encouragement, guidance and if necessary training to improve their work performance. However, a distinction must be drawn between inherent incapacity (for example, this might include an ongoing/serious illness, or if the person has not received the training they need) and a lack of performance that is attributable to a wilful refusal to work satisfactorily (for example, persistent failure to meet agreed deadlines, or unauthorised absence from work). The latter is a matter of conduct and will be dealt with under NHS Borders Management of Employee Conduct Policy. Where an employee's lack of performance is related to a capability issue, the primary objective must be to assist and support the employee to improve to the required standard and every effort must be made to keep the employee at work. The reasons for the unacceptable performance need to be identified and an appropriate course of action jointly agreed to improve the performance. Only if discussions, training, referral to an independent counselling service or consideration of alternative employment fail to produce the required improvement should dismissal for lack of capability be considered. Nothing in this policy and protocol however, is intended to prevent the normal process of supervisory control where managers allocate work, monitor performance, draw attention to errors and poor quality and, as importantly, highlight work done well. This ongoing day-to-day process may include informal assistance in achieving improvement to the required standard. Much of this ongoing process will be carried out in conjunction with the NHS Borders Appraisal, PDP and Review Policy. Such discussions are not part of the Capability Protocol and therefore formal interviews and representation are not appropriate to this everyday ongoing process. This protocol has been developed in partnership. It reflects the best practice identified in the Management of Employee Capability guideline produced by the Partnership Information Network (PIN) Board. The policy also reflects relevant employment legislation including the Employment Relations Act 1999; the Human rights Act 1998; Data Protection Act 1998; Employment Rights Act 1996; and the Disability Discrimination Act 1995 (as amended 2005). Principles and aims The Employment Relations Act (ERA) 1996 states that "capability (is) assessed by reference to skill, aptitude, health or any other physical or mental quality". It also indicates that "incapability must relate to the work or the kind of work that the employee was employed by the employer to do". This must be determined in accordance with the employee's current contractual obligations. 3
This policy and protocol will ensure that capability issues are dealt with in a fair and consistent manner by providing: Assistance to employees to improve performance wherever possible when such deficiencies exist Firm but fair and consistent means of dealing with capability problems without recourse to the management of employee conduct (disciplinary) policy A means of addressing capability issues where improvement in the current job is impossible In order to achieve this, the management of capability should always be consistent, with respect for the employee as an individual and should respect the diversity of staff. Early intervention when poor performance is identified should be encouraged enabling a supportive approach to be taken. There should be a range of options available to deal with such matters. Scope This policy and protocol has been developed with support from the Area Partnership Forum and in line with the PIN guideline on Management of Employee Capability. It applies to all managers and employees within NHS Borders, including those working for NHS Borders, but legally employed by another authority i.e. Doctors in the Training Grade. The Head of Clinical Service should raise concerns about the capability of a doctor in the training grade with the Postgraduate Dean or a relevant officer from NHS Education for Scotland. We also commend this policy and protocol as good practice to those in the wider NHS family in Borders, such as GDPs, GPs, Dentists and Community Pharmacists. In addition to this policy and protocol, NHS Borders will take account of the Fitness to Practice Procedures published by the General Medical Council when managing the capability of Registered Professional Staff, including Medical Practitioners. NHS Borders is also obliged to act in accordance with direction issued by the Scottish Executive or other regulatory bodies such as the Nursing and Midwifery Council and the Health Professions Council, when dealing with concerns about practitioners. Chief Executive Employee Director 4
Management of employee capability protocol 1 Definitions This protocol is designed to deal with situations where the employee is lacking in some area of knowledge, skill or ability, resulting in a failure to be able to carry out the required duties to an acceptable standard. The protocol is to be used to assist in dealing with issues where there is a genuine lack of capability, rather than a deliberate failure on the part of the employee to perform to the standards of which they are capable. This may come about for a variety of reasons including the following: Ill health (short or long term) Personal circumstances Loss or failure to achieve qualifications (academic, technical or professional) Lapse or loss of registration Changes in the workplace environment (e.g. technological development) Bullying and Harassment (as defined in the Dignity at Work Policy) 2 Initial approach In order to determine whether there is a capability issue and whether the matter should be dealt with under this procedure, the following questions should be considered: What are the indications that the employee is not measuring up to the requirements of the job Have there been complaints about, or criticisms of, the employee's work from colleagues, patients or visitors? Are there factual grounds to indicate inadequate performance, such as poor results? (as per the KSF Post Outline) Does the line manager's own observation of the employee indicate dissatisfaction with the employee's performance? Has the employee requested help to overcome a problem? The way forward in the initial stages of the procedure will be determined by the answers to these questions. Initially an informal discussion with the employee focusing on the particular performance issues should take place. This is to ascertain whether the employee accepts that there is a problem and if so, if they will respond positively to constructive support and 5
assistance to improve their performance. The line manager must constantly bear in mind that the aim is to assist the employee to improve to an acceptable standard. It is crucial that as many aspects of the problem as possible, as perceived by the employee, are unearthed. This will require a sensitively handled discussion free from interruption, conveying the line manager's undivided attention, aimed at establishing an atmosphere of trust and open discussion. The manager should: Encourage the individual to describe the situation from his/her perspective Probe the individual's description by the use of open-ended and non-negative questions (e.g. how, what, why, when, where) Be alert as to how to persuade the employee to elaborate on generalities that may conceal details of the problem Be alert to possible contributing factors, e.g. relationships with colleagues, fears of inadequacy / failure, lack of promotion, insufficient training, domestic / health reasons Avoid censure, blame or criticism Ensure important questions are not avoided by the employee Shape the discussion so that the real issue is identified, contributing factors highlighted, possible solutions discussed and an agreed action plan with timescales and a review mechanism is formulated. The outcome of all discussions/meetings should be recorded in writing and kept on the employees personal file in line with the Data Protection Principles [insert electronic link]. A Record of Discussion (RoD) template can be used for this, the RoD template can be found on the HR intranet page. 3 Responding to capability issues It is recommended that line managers deal with issues about performance or capability informally in the first instance. In many cases an informal conversation between the line manager and an employee will be enough. The outcome / agreed actions should be recorded in writing and kept on the employees personal file. Formal action is appropriate where the initial approach has not led to the necessary improvement in performance or capability, and in more serious cases. In all cases, managers will provide support and encouragement, regardless of the employee s response to the capability issue. Employee responses generally fall into one of the following categories: The employee accepts there is a capability issue and leaves it to the manager to suggest how to resolve it 6
The employee expresses doubt as to the existence of a capability issue, but is willing to respond to the managers suggestions for improvement. In this case, the manager should discuss what evidence they have to support their concerns with a view to reaching agreement with the employee on the most appropriate action The employee acknowledges the capability issue (or volunteers concern about it) and asks for help to resolve it The employee denies the existence of any problem this is undoubtedly the most difficult situation to deal with 3.1 Achieving improvement Improvements cannot be imposed on an employee, it is therefore important that any action plan is discussed fully with the employee and agreed. In addressing the capability issue the line manager should work with the employee to develop an appropriate action plan. This might include one or more of the following options: Provision of training: The provision of training to encourage an employee to improve his / her performance may be important. The judgement of what might be appropriate further training and its delivery should be discussed and agreed with the employee. Flexible working: There are many variations around the theme of flexible working and it may be that a change of working hours or moving to part-time employment may assist in improving performance. Such a change will normally be permanent, but may be agreed on a temporary basis in some situations. Any changes would have to be agreed between the manager and employee, and every effort must be made to accommodate such requests when capability issues are being addressed. Details of flexible working are contained in NHS Borders Flexible Working Requests Policy [create electronic link]. Referral to occupational health service: The Occupational Health Service (OHS) will, in some instances, have a key role in addressing aspects of capability. Managers may refer employees to OHS when they require advice and/or support in identifying solutions, or it is also an option for individuals to self-refer to OHS. Employees are assured that confidentiality will be maintained. For more information please refer to the appropriate OHS Policy. Support in workplace: It is good practice to provide an employee who is underperforming with support from someone who is skilled in the work the under-performing employee is employed to do. This promotes awareness of the demands of the job and an example against which to measure his / her own performance. The selection of the chosen employee will need to be carefully thought through by management and agreed with both the individuals concerned. It is important to recognise that poor selection could result in further de-motivation of the underperforming employee. Independent counselling service: Some employees may benefit from access to a counselling service. Managers and employees can get more information about these services from OHS and should consider referral as appropriate. 7
Re-deployment: It may be beneficial in supporting an individual to improve performance to offer either temporary, or in some cases permanent, re-deployment. The nature and duration must be agreed between the individual and the line manager and be in line with NHS Borders Redeployment Policy. Alternative employment: Where alternative employment is considered, the line manager, employee and their representative must all be fully involved in the redeployment process. Managers must also remember that it may be necessary to offer training in the new post. It may be that the offer of alternative employment would be at a lower grade than the current post. In such circumstances, the new post would not normally attract protection and the individual would normally be subject to the salary and terms and conditions applicable to the new post. In certain circumstances, normally related to ill health, it may be possible to preserve Superannuation benefits. Employees moving to alternative employment are urged to seek advice on the process from their nominated HR Manager, as written notification to SPPA must be given within three months of the salary reduction. All employees who are offered alternative employment must be offered a trial period in the new post. The duration of the trial period will be agreed between the manager and the employee, but will not normally be longer than three months. Further information on the process for securing alternative employment is available in NHS Borders Redeployment Policy. 3.2 Outcome of informal discussion The line manager should, in a letter to the employee, record the date, time and outcome of the meeting. Copies of all letters must be retained in the employee s personal file in line with the Data Protection principles. 4 Formal process If, following the agreed review of the employee's performance, there has been inadequate improvement, a more formal approach may need to be adopted. Prior to entering the formal stage, the line manager will ensure that the employee has had the necessary training and the guidance and support required to undertake the job. No action will be considered until a thorough investigation has been carried out. The HR Manager for the area will help to identify an appropriate manager to undertake the investigation (in matters of capability, this is most likely to be the line manager). The identified manager with thereafter be known as the Investigating Officer and will be supported by a Human Resources Manager. It will always be made clear in advance to the employee (and representative if relevant) that the capability rather than the conduct (disciplinary) process is being used. 8
4.1 Representation At all stages of the formal procedure, an employee is entitled to have a representative present. In line with current legislation (Employment Relations Act 1999 and 2004), this would normally be a representative from a trade union or professional organisation, or a work colleague. It is the responsibility of the manager to notify every interviewee that they have the right of representation, and to allow sufficient notice for the person to organise this. It is the interviewee s responsibility to arrange representation, should they wish to. A Human Resources Manager may also be present. In exceptional circumstances, it may be the case that no appropriate representation is available to the individual. For example, this may happen if the individual is not a member of a trade union or if a person being interviewed is not an NHS Borders employee. In these rare situations, it is reasonable for the person to be accompanied by a friend or relative. Alternatively, a member of staff in this situation may contact the Partnership office (01896 825167) to ask for some help. However, this policy describes NHS Borders internal process. It is not a legal process, and therefore it is not appropriate for any interviewee to be represented by someone who works in the legal profession (e.g. a lawyer or solicitor). If, as a result of the process, the case is ultimately heard outwith NHS Borders (e.g. at an Employment Tribunal), then the employee has the right to legal representation at that stage. Where the employee or representative is unable to attend a hearing on the date identified, then an alternative date should be agreed which is suitable for all parties. If the employee or representative is unable to attend a subsequent hearing, the chair of the panel may decide, following discussion with HR, to proceed with the hearing in their absence. 4.2 Stage 1 - approach Where an employee is failing to perform to an acceptable standard despite having been given initial, informal guidance and support, the Investigating Officer will arrange a meeting with him / her. The employee will be given at least five working days' notice of the meeting. The written confirmation of the meeting will include: The process and stage being used Clear details of the shortfall in performance All necessary supporting documentation Details of any informal discussion so far The right to representation The purpose of this meeting will be to discuss and agree: Areas in which their performance is unsatisfactory Improvement in performance which is required, and how it will be measured 9
Action plan for addressing the performance issues with an agreed timescale for improvement Date their performance will be reviewed again Action which may follow if the required improvement in performance is not achieved During this meeting the employee will be told clearly and precisely of the deficiencies which have been identified and of the improvement in work standard which is required (with the possible consequences of not doing so). There must be an opportunity for the employee to answer these points and to explain any difficulties which s/he may be having, and a discussion on the ways and means by which the desired improvement may be achieved. Stage 1 - outcome of meeting The outcome of this meeting will be formally recorded in a letter to the employee within five working days of the meeting. The letter will include: The areas where performance is unsatisfactory The improvement(s) required An agreed action plan to achieve improvement underpinned by regular monitoring meetings Timescale for improvement with date for overall review Details of the right of appeal and the possible consequences if the necessary improvement is not achieved If, at the agreed review date the desired improvement has been achieved, the employee will be appraised of the situation. This will be recorded and the employee will be given written confirmation within five working days of the review. 4.3 Stage 2 - approach If, at the overall review of Stage 1, the desired improvement has not been achieved, a further meeting with the employee will be arranged. The timescale, format and purpose will be as detailed in Stage 1. In addition, the support measures previously identified will also be reviewed and there will be discussion as to whether they should continue or if additional measures might be helpful. The employee will again be given the opportunity to answer the points made and provide any other relevant information. It may be appropriate to arrange formal career counselling or to discuss whether permanent redeployment would be an option for the employee at this stage. If either of these are agreed possibilities, the HR representative will be notified and will be 10
responsible for investigating the possible options and liaising with the relevant people. (Where there is redeployment to a post on a lower grade, the new post would not normally attract protection but would normally be subject to the salary, terms and conditions applicable to the new post.) Stage 2 - outcome of meeting The outcome of this meeting will be formally recorded in a letter to the employee within five working days of the meeting. The letter will include: The areas where performance is unsatisfactory The improvement(s) required An agreed action plan to achieve improvement underpinned by regular monitoring meetings Time-scale for improvement with date for overall review Details of the right of appeal Failure to achieve the necessary improvement within the agreed timescale will result in consideration of termination of employment on the grounds of capability. If, at the agreed review date the desired improvement has been achieved, the employee will be appraised of the situation. This will be recorded and the employee will be given written confirmation within five working days of the review. 4.4 Stage 3 (dismissal) - approach If, despite all the measures outlined above, the desired improvement has still not been achieved, the Board Executive Team member or senior manager with the authority to dismiss must convene a meeting. The notice and information will be as stated for stage 1. This meeting will involve the Investigating Officer, H.R. representative, the employee and his/her representative. The employee will again be clearly told of the continued deficiencies and given the opportunity to answer the points made. Following the meeting the Investigating Officer will make a decision as to whether there is any likelihood of the employee's performance achieving an acceptable level by extending the assistance offered or the time-scale agreed under the previous stage. If the Investigating Officer believes adequate improvement is possible in a reasonable time then this should be agreed as in Stage 2. If the decision is that performance will not become acceptable in the current post, further consideration will be given to whether permanent redeployment is possible, and to whether the alternative job is likely to be performed to the required standard by the employee. 4.4.1 Termination on the grounds of capability (Ill-health) Although never a pleasant option, it is legally fair to terminate an individual s employment on the grounds of capability (ill-health). However, this will only be undertaken after all other options have been looked at thoroughly. 11
If employment is being terminated for reasons of capability, the Investigating Officer needs to be able to show that they have: Discussed the situation with the staff member and his or her representative (if involved) Thoroughly investigated the medical and other facts Balanced the staff member s likely future capability against the organisation s needs Fully explored other employment options and have found that these are either not available or not practical; and Considered whether the Disability Discrimination Act (as amended 2005) applies Stage 3 - outcome of meeting If no suitable alternative employment is available, or the employee declines redeployment, dismissal will take place. The employee will be advised in writing within five working days and the letter will include: The reasons for the dismissal The date of dismissal Any necessary administrative or financial arrangements To whom, and within what time limit, any appeal should be made 5 Appeals The right to an appeal exists at all stages of the formal procedure. There will not be a delay in implementing management decisions pending an appeal, but they may be subsequently amended or reversed as a result of an appeal hearing. Stages 1 or 2 An employee, who is aggrieved at a decision made at Stages 1 or 2, has the right to appeal to the manager once removed from their line manager. Any appeal should be made in writing and should be received within 10 working days of receipt of the confirmation letter. Stage 3 (dismissal) An employee who is aggrieved at the decision made at Stage 3 i.e. being dismissed, has the right to appeal to the Chief Executive. An appeal, in writing, should be received with 10 working days of receipt of the letter of confirmation. The organisation will convene a panel, which will include a member of the Board and a senior member of the Human Resources team to hear the appeal against dismissal. No member of the panel will have had any previous knowledge of the case. 12
Arrangements for appeals against dismissal A senior member of the Human Resources Department will be responsible for coordinating all arrangements on behalf of the Chief Executive The appeal hearing will be held within one month of receipt of the appeal The employee and their representative will be informed in writing of the date, venue and time of the appeal hearing. They will also be advised of the names of those who will hear the appeal The employee will be advised of their right to be accompanied by their trade union/professional organisation representative or colleague The employee and the dismissing manager will be asked to submit a written case at least 7 working days prior to the appeal hearing. They will also be required to submit the names of any witnesses to be called It will be the responsibility of the employee and the dismissing manager to inform any witness of the arrangements for the appeal hearing At least five working days before the appeal hearing copies of the written case along with the names of any witnesses to be called will be circulated to the panel, the employee and the dismissing manager 6 Monitoring and evaluation of policy Responsibility for monitoring the application of this policy will rest with senior management. The Director of Nursing, Midwifery and Workforce will carry this out in partnership with the Partnership Forum and Board. Initially these issues will be considered six monthly. 7 Training An appropriate Training Programme will be developed in Partnership and delivered to managers. 13
8 Summary of roles and responsibilities The responsibilities of all Service Managers / Heads of Departments are to: Ensure that they are familiar with this policy and protocol Provide support to managers in their area of responsibility during the application of this policy and protocol The responsibilities of every Line Manager in NHS Borders is to: Ensure that they are familiar with this policy and protocol Ensure that employees are clear about the level of performance required of them Ensure that employees are treated fairly and consistently Distinguish between inherent incapacity and a lack of performance that is attributable to a wilful refusal to work satisfactorily (in which case the capability policy would be applicable) Offer support, encouragement, guidance and if necessary training to improve employees work performance where deficiencies exist Record the outcome of all discussions / meetings in writing and keep on the employees personal file in line with the Data Protection Principles The responsibilities of all employees are to: Perform the duties of their post (as per their KSF Post Outline) to an acceptable standard wherever possible Work with managers to provide support to any employee who is under-performing The responsibilities of all Staff Side Representatives are to: Represent employees fairly and in line with this policy and protocol Act at all times in line with their responsibilities under the Partnership Agreement The responsibilities of HR are to: Proactively advise, support and guide all employees and line managers in this policy and protocol The responsibility of Training and Professional Development is to: To work with Managers and employees to identify appropriate education and development solutions for individuals subject to this policy The responsibility of Occupational Health Services is to: Provide employees with support at any time during this process 14
Management of employee capability policy working group members: Rachel Bacon Geraldine Bouglas Alex Brogan Edwina Cameron Eileen Frame General Manager HR Policy Development Manager Associate Director of HR Employee Director Staff Side 15
Appendix 1 Management of Employee Capability - process route map 16
Management of Employee Capability - process route map Single issue e.g. loss of registration or driving licence Cumulative issues e.g. failing to perform to acceptable standards Formal process - IO and HRM: Establish basis of issue with Manager and identify possible witnesses Establish the facts Gather hard evidence Interview witnesses Interview member of staff Informal process - Regular meetings Support from Occupational Health Target setting Not resolved Manager and HR liaise to identify appropriate Investigating Officer (IO) and HR Manager Need for Hearing..? Resolved Monitor situation and review at agreed intervals No Yes Discuss / agree between HR / manager / employee Need for development or changes to work situation Yes No Record decision and retain in HR IO and HRM: Identify appropriate Chair / Panel and arrange Hearing Write Management Case (including all statements and evidence Notify employee and witnesses Sanctions imposed..? Implement and review at agreed intervals Note: All meetings should be recorded in writing a Record of Discussion (RoD) template can be found on the HR Intranet pages. Staff should be reminded of the supports available through OH and Confidential counsellors Chair of the panel must: Confirm outcome in writing to employee and line manager Advise of right of appeal Decision appealed..? No Information retained in personal file for duration of sanction Yes Appeal upheld Yes No Appeal Hearing arranged by Chair of the Panel and supporting HRM Appeal partially upheld Record decision and retain in HR Appeal not upheld 17