Capability (Performance) Procedure and Policy Document Type Capability (Performance) Procedure &. Policy Author Director of Corporate Services Owner (Dept) Human Resources Date of Review October 2015 Version 1
List of Contents Page No 1. Policy Statement... 3 2. Scope... 3 3. Principles of the Policy... 3 4. Responsibilities... 4 5. Procedure... 4 5.1 Informal Stage... 4 5.2 Formal Procedure Stage 1: First Formal Caution... 5 5.3 Formal procedure Stage 2: Final Formal Caution... 6 5.4 Formal procedure Stage 3: Dismissal on the Grounds of Capability... 6 6. Alternatives to Dismissal... 7 7. Appeals... 7 8. Notification of Regulatory Bodies... 8 9. Review of Policy... 8 Page 2
1. Policy Statement The Mungo Foundation recognises that satisfactory performance by all of its employees is required to ensure successful and effective delivery of services. The Capability Policy is designed to address issues of performance which arise in relation to an inability to perform at the required standard for a post because of a shortfall in competency, skill, knowledge or understanding. This may arise due to shortfalls in ability which are able to be corrected by short term training or personal development interventions. Alternatively they may be due to a fundamental inability to undertake the duties of the post. This may be because the individual was wrongly appointed initially or because the demands or complexity of the job have changed over time. The aim of this policy is to provide a fair and consistent framework for resolving capability issues when they occur. It is intended that when such issues arise they are dealt with promptly and in a supportive manner, but recognising the need to balance individual development needs with the needs of the service. 2. Scope This policy applies to all employees of The Mungo Foundation who have completed the probationary period. 3. Principles of the Policy This policy complies with the Employment Act 2002 and the ACAS Code of Practice on Disciplinary and Grievance Procedures (October 2004). In the application of this policy, managers will also take into consideration the organisation s commitment to equality and diversity as per the Equality Act 2010 and will not unlawfully discriminate in respect of age, disability, race, nationality, ethnic or national origin, gender, religion, beliefs, sexual orientation or trade union membership. In normal circumstances, each stage of the procedure will be applied in turn. However, in exceptional circumstances it may be appropriate to implement the procedure at a later stage, for example in a case of gross incompetence or where the issues of performance are too serious to be dealt with at an informal stage. Performance issues will also be dealt with through the normal Supervision and Appraisal process, but where concerns persist the capability policy should be used to address these formally. Where the cause of poor performance is found to be wilful negligence or misconduct, the organisation s Disciplinary Policy will apply. Page 3
4. Responsibilities It is the responsibility of all staff to perform to a satisfactory level to meet the requirements of their employment contract, which includes the SSSC Codes of Practice applicable to individuals working in social care. The Mungo Foundation has a responsibility to set realistic and attainable standards of performance and for communicating these clearly to staff. It is the responsibility of managers to ensure all staff have regular Supervision and Appraisal. They should undertake day to day guidance and supervision of staff, appropriate to the job role and work area, in a manner, which gives staff the opportunity to take advantage of opportunities for improvement (e.g. through access to training). It is also the responsibility of managers to take action using the Capability Policy when standards of performance fall below those required. 5. Procedure 5.1 Informal Stage As soon as a manager identifies problems in relation to an individual s performance an informal meeting with the employee should be arranged to review the situation. The purpose of the meeting will be to have a positive, supportive and constructive discussion and to identify ways to help the individual improve their performance. There should be an opportunity for the individual to express their opinion. The line manager should make it clear where the areas of shortfall are in relation to performance standards, and to consider whether there are any external factors affecting the individual s performance. The manager should also provide the individual with a copy of the Capability Policy. The meeting should result in an action plan which sets out the steps required to assist the individual in meeting the required standard of performance. This may include (although is not an exhaustive list): Further training Redistribution of workload An increase in supervision Changes to other factors e.g. resources, work environment Consideration of changes to working arrangements to meet personal commitments if these are affecting performance Re-statement of duties associated with standard of performance expected of role The action plan should detail the improvements required, agreed changes/training/resources, and timescales. It will normally be appropriate for the timescale for improvement to be between 4 and 12 weeks, depending on the nature Page 4
of the issue. This improvement should then be sustained. It should be made clear to the individual that failure to meet and sustain the required standard may result in formal procedures being instigated. The action plan should be signed by both parties and a copy provided for the individual. Continuous monitoring should take place during the agreed period and the manager should meet regularly with the individual during this time to give feedback and assess progress against the action plan. There is no requirement for representation at the informal stage of this process. 5.2 Formal Procedure Stage 1: First Formal Caution Where informal action has not resulted in the required improvement, or the improvement has not been maintained, the member of staff should be made aware that their performance is unsatisfactory. A formal review meeting should be arranged. The manager should confirm the time, date and purpose of the review meeting in writing to the individual, and should provide at least 5 working days notice of the meeting. Individuals have the right to be accompanied at all formal stages by an accredited Trade Union representative or a work colleague. An exception will be made in the case of staff with a physical condition or disability that means they require specific support. If the companion is unable to attend, an alternative date will be arranged within 5 working days of the original date. It is the responsibility of the member of staff to arrange who will accompany them. The meeting should be a two way discussion in order to: Inform the individual that their standard of performance is unacceptable and detailing the specific areas of shortfall, providing examples and evidence, including the effect on the service and colleagues; Allow the individual an opportunity to identify reasons for perceived poor performance; Advise the individual of the standard of performance required and how that will be measured; Advise the individual of the timescale for improvement (usually 4-8 weeks) and the consequences of failure to improve and maintain improvement ; Identify any further support or training required to assist the individual in achieving the required standard of performance, e.g. supervision, mentoring etc.; Make it clear that the individual is being issued with a first formal caution under the capability procedure. Page 5
A Performance Improvement Plan(see Appendix.1) will be agreed with the individual which sets out what improvement is required, the timescale for improvement and any identified support and training to be put in place. Following the meeting the manager will write to the individual within 10 days of the meeting, summarising the meeting, confirming the outcome and including the action plan. Regular monitoring should take place during the review period and the manager should meet periodically with the individual during this time to give feedback and assess progress against the action plan. At the end of the review period the manager should inform the individual if they have met the required standard. If performance is acceptable there will be no further action. The first formal caution will remain on the individual s file for a period of 6 months, and should performance not be maintained during this period the matter will proceed immediately to the next stage. 5.3 Formal procedure Stage 2: Final Formal Caution Failure to demonstrate the required improvement in performance following a first formal caution will result in a further meeting, which will follow the procedure outlined at stage one. At the meeting the performance during the review period will be discussed and examples provided where performance continues to be below the required standard. A final caution will be issued and a further action plan agreed. A timescale will be set for improvement of no more than 8 weeks. The manager will make it clear to the individual that the consequence of not meeting the required standard in the agreed timescale may result in dismissal. Following the meeting the manager will write to the individual within 10 working days summarising the meeting, confirming the outcome and including the Performance Improvement Plan. Regular monitoring should take place during the review period and the manager should meet periodically with the individual during this time to give feedback and assess progress against the action plan. At the end of the review period the manager should inform the individual if they have met the required standard. If performance is acceptable there will be no further action. The individual should be reminded that the first formal caution will, however, remain on file for 12 months and that if performance is not maintained the matter will proceed immediately to the next stage. If performance has not met the required standard the next stage of the procedure will be implemented. 5.4 Formal procedure Stage 3: Dismissal on the Grounds of Capability If action at stage 2 fails to bring about an improvement in the level of performance required, a formal Capability Hearing will be arranged. The hearing is the final stage of the procedure and will seek to review the evidence, explore the options available and make a decision about the individual s employment, based on their performance. A hearing will be arranged by an appropriate senior line manager. The manager will write to the individual confirming the purpose and arrangements for the hearing, and will provide at least 5 working days notice. The individual is entitled to be Page 6
accompanied at the hearing in accordance with the earlier formal stages of the procedure. A representative of the Human Resources Department will also usually be present to provide advice to the manager. The manager who has dealt with the case at the earlier stages will prepare a statement for consideration at the Hearing. This will be provided in advance to the employee and during the Hearing the employee will have the opportunity to respond to this. There will be the opportunity for the manager chairing the hearing and the Human Resources representative to ask questions. The manager chairing the hearing will consider the evidence presented and make a decision based on the facts. They will confirm whether the outcome is dismissal, or an alternative to dismissal in accordance with section 6 of the policy, or whether an earlier stage of the process needs to be repeated if the procedure has not been followed. If the decision is to dismiss, the individual will be given notice in accordance with their employment contract that their employment is being terminated on the grounds of capability. A decision will be made whether the notice will be worked or paid in lieu. In the event that an individual is dismissed for gross incompetence then summary dismissal without notice may be appropriate. The manager will write to the individual within 10 working days confirming the outcome of the hearing, the reasons for the decision, and detailing the right of appeal. 6. Alternatives to Dismissal It may be appropriate, as an alternative to dismissal to make recommendations for other action which could include redeployment, downgrading, making adjustments to working hours etc. There is no right to such alternative action, and any such action will require the agreement of the individual. Where a move to another post, downgrading, or change of hours is agreed, there will be no protection of salary or terms and conditions, and the terms and conditions attached to the new post will automatically apply. Continuous service will be retained and previous cautions will remain on file for a period of 12 months. 7. Appeals An individual has the right of appeal against any decision at the formal stages of this procedure. Any appeal should be submitted in writing to the appropriate manager, as cited in the decision letter within 10 working days of receipt of the letter. The appeal letter should set out the grounds for appeal. The appeal will be heard by the appropriate manager as soon as practicable, and normally arranged within 15 working days. The appeal will usually be heard by the next manager in terms of seniority in the management line. The same rights to be accompanied apply as in the formal stages of the procedure, An appeal is not a re-hearing. The manager hearing the appeal will review the earlier decision, ensuring that it was made reasonably and fairly. Both sides will have the opportunity to present their case. A decision will be made after due consideration of Page 7
the evidence presented. This may be confirmed on the day of the hearing but depending on the complexity of the case or time available, the decision may be communicated in writing following the hearing. It is open to the manager or panel hearing the appeal to uphold the appeal, confirm the original decision and sanction applied, or to substitute a lesser or more severe sanction. The manager hearing the appeal will write and confirm the decision within 10 working days of the appeal hearing. The decision given following an appeal against dismissal is final. 8. Notification of Regulatory Bodies All staff are responsible for complying with the relevant standards set by their professional or regulatory body. At any stage during the capability procedure consideration may be given to referring the individual to the relevant professional or regulatory body for consideration of action by that body. The Mungo Foundation may take action under the Capability Policy regardless of and independent to the outcome of any referral to a professional regulatory body. 9. Review of Policy The policy will be reviewed every 24 months or sooner if required in order to comply with legislative requirements. Page 8