CAPABILITY POLICY POLICY STATEMENT 1. PHSO is committed to ensuring that staff achieve high standards of performance and are supported in this by their line managers. 2. The Capability Policy and associated procedures are to help managers achieve improvements in the performance of employees through advice, coaching, guidance and support. The management of employee capability will be conducted in a positive and constructive way, with the emphasis on identification of concerns, developing performance in areas identified as needing improvement, providing reasonable adjustments for employees with disabilities, and giving the employee a reasonable chance to improve. PURPOSE AND SCOPE OF POLICY 3. This policy and procedure deals with issues relating to an employee s: work performance; and/or attendance (including frequent intermittent or long-term health-related absences). 4. The policy sets out the procedure to be followed where there are concerns about an employee s capability to undertake their role and seeks to ensure that all parties have a clear understanding of the Capability procedure and its requirements. 5. This policy applies to all PHSO employees who have completed their probation. Performance of employees on probation is managed through the Probation Policy. 6. If there are performance concerns regarding an employee on secondment to PHSO, PHSO will usually consult with the home organisation before taking formal action. In exceptional circumstances where the performance is considered to be substantially below the PHSO standards, the individual may be required to return to their home organisation instead of initiating the formal stages of the Capability procedure. 7. Managers must make clear to temporary agency workers the standards of performance and attendance that are required and manage these effectively. However, where there are concerns about their performance or attendance, PHSO may remove an agency worker from the Office without delay or recourse to this or any other employment policy. 1
PRINCIPLES 8. The following principles underpin the Capability Policy and procedure: managers will provide or facilitate appropriate advice, guidance, training and support to their staff to assist them to reach the standards required; managers will normally provide an opportunity for concerns to be addressed informally before recourse to the formal stages; managers will deal firmly and fairly with performance concerns by following the formal Capability Policy and procedure, seeking advice or support from HR, People & Talent; where the employee has a disability, managers will ensure that reasonable adjustments have been fully explored and provided, where appropriate; PHSO takes the view that poor job performance and unacceptable levels of absence should not normally be treated as a disciplinary offence. However, employees are expected to co-operate with the requirements of the Capability Policy and procedure and failure to do so may be considered under the Disciplinary policy; any abuse of sick absence will be dealt with under the Disciplinary Policy. OUTCOMES 9. The outcomes of this policy are that: the achievement of PHSO aims and objectives are enabled through high performing employees; performance concerns are dealt with in a fair and consistent manner; PHSO acts in compliance with relevant statutory requirements. MONITORING AND REVIEW 10. HR, People & Talent will monitor the formal stages of implementation of the Capability Policy and procedure and in particular formal decisions taken, for fairness and consistency. 2
Capability procedure 1. When to use the Capability Policy and procedure 1.1 The Capability Policy and procedure should be used where there are concerns about an employee s work performance and/or their attendance. Both are likely to impact on the employee s capability to achieve the standards expected by the Office. 1.1.1 The Capability Policy and procedure runs alongside, but is not dependent on, the Performance Development Review System (PDRS). PDRS is a structured process for reviewing and monitoring performance, whereas the Capability Policy and procedure sets out the formal steps to be followed if performance or attendance falls below the standard required. 1.2 Performance Performance concerns should be addressed with the individual promptly, as they occur. Management under the Capability Policy and procedure can be commenced, if performance warrants it, irrespective of the rating previously awarded under the PDRS review. There is no requirement to await the Mid or End of Year PDRS performance reviews or amend the PDRS rating at other times of the year, before taking action under the Capability Policy and procedure. 1.3 Attendance PHSO continues to view sickness absence as genuine incapacity and staff will be supported, where possible, if sickness absence occurs. However, high levels of sick absence will impact on the individual s ability to perform to full capacity and will impact on colleagues and on business performance. For this reason, high levels of sick absence are not sustainable. Therefore, where an employee s sickness absence reaches an unacceptable level, the Capability Policy and procedure should be used. The Healthy Workforce policy gives guidance on trigger points which indicate the Office s view of levels of absence which are unacceptable. 2. Capability procedure 2.1 HR advice must be sought where the formal stages of the Capability Policy and procedure are to be followed. Where the employee has a disability HR, People & Talent will discuss with the line manager whether any new or further reasonable adjustments need to be put in place in order to support the employee. It is important that PHSO s obligations under the Equality Act 2010 are met. Line managers must address performance/attendance issues informally with the employee before they develop into major problems whenever it is possible to do so. 2.2 Informal Stage 2.2.1 The majority of capability issues should be able to be resolved promptly and informally through discussion advice, coaching and counselling. Action should normally start at the informal stage. However, note that in exceptional 3
circumstances the steps do not need to be followed in sequence and it may be appropriate to go direct to the formal stage. Where the line manager wishes to go directly to the formal stage they must seek advice from the Head of HR, People & Talent. 2.2.2 When a performance/attendance concern becomes apparent the line manager should meet with the employee as soon as possible to discuss the issue. The purpose of this discussion is to ensure that the employee understands: in what way their performance/attendance is not currently at the standard required; what needs to be consistently achieved; the general expectation of the employee in their role; and the action that will be taken if there is no sustained improvement. 2.2.3 This meeting should address concerns the line manager has about the employee s performance/attendance and to examine and document the employee s responses. The line manager should identify in what way and if possible why the employee is failing to reach the performance/attendance levels expected giving factual examples where possible. The employee should be asked for their explanation, which should subsequently be followed up and checked where appropriate. 2.2.4 If the reason for unsatisfactory performance is lack of the required skills, the employee will, where practicable, be assisted through training and be given a reasonable opportunity to reach the required standards of performance. 2.2.5 Where the employee indicates that there may be disability related reasons for poor performance or attendance, the manager should explore whether there are any reasonable adjustments which need to be put in place to assist the employee. The line manager should seek further advice from HR, People & Talent at this stage. 2.2.6 Although this is the informal stage, notes of the discussion must be provided to the employee, which should detail the required performance/attendance and indicate the regularity with which they will meet in order to address these matters. The line manager should meet with the employee regularly before that date to provide feedback on progress. At the end of this period, the line manager must decide whether it is necessary to proceed to the formal stage. 2.2.7 Where performance/attendance has reached the required standard, the line manager should meet with the employee to confirm that the standards have been achieved and seek a commitment to maintaining the required standards. 2.2.8 Further guidance on managing performance is provided in the Capability Policy Guidance Notes. 4
2.3 Formal Stages 2.3.1 The Capability Policy and procedure has the following formal stages: Stage 1 initial meeting and setting of Stage 1 Improvement Plan when necessary; Stage 2 - review and setting of Stage 2 Improvement Plan when necessary; Stage 3 final hearing which may lead to dismissal. 2.3.2 This is not an escalating procedure. It may be appropriate in some circumstances to move to a higher stage without having first been through the previous one. In these circumstances the line manager must seek advice from the Head of HR, People & Talent. 2.4 Formal Stage 1 2.4.1 Formal capability management should be initiated where informal management has either not worked or is not appropriate. The line manager should contact HR, People & Talent to discuss the next steps. 2.4.2 Formal Stage 1 begins with a meeting between the employee and the line manager. A member of HR, People & Talent will be present to give procedural advice and guidance. See section 4 below for information on the employee s right of accompaniment. 2.4.3 In advance of this meeting the line manager should collate any paperwork to illustrate the performance/attendance concerns. Any documentation that the line manager or the employee plans to refer to during the meeting must be shared with the other party in advance of the meeting. 2.4.4 Meeting The purpose of this meeting is to formally discuss the performance/ attendance concerns and, where necessary, initiate formal action, in the form of an improvement plan. Therefore at this formal meeting the line manager should: state the performance/attendance concerns that exist; invite the employee to respond/comment on the concerns raised and provide any mitigation they would like taken into account before a decision is reached; discuss what support has been provided, including training and any reasonable adjustments for employees with disabilities, check that these remain appropriate and whether further reasonable adjustments are necessary; invite the employee to suggest any other support they wish the line manager to consider. 2.4.5 Before reaching a decision the line manager may want to adjourn in order to consider what they have read and seen including evidence and mitigation presented by the employee. The potential outcomes of the meeting are: 5
Performance/Attendance is unacceptable Performance/Attendance is acceptable Capability proceedings continue. A Stage 1 Improvement Plan is set. The employee should be advised that ultimately failure to meet the required standards may result in dismissal. Evidence or mitigation provided at the meeting means that no formal action is appropriate under formal stage 1 at this time. However, the employee should be advised that if performance declines the Capability procedure will be implemented at the formal stage without further informal action. 2.4.6 Following the meeting the line manager should summarise the discussion in writing. If action under Formal Stage 1 is appropriate this will be in the form of an Improvement Plan. 2.4.7 An Improvement Plan is the formal confirmation to the employee that performance is a concern and specific areas requiring improvement. Further guidance is provided in the Managers Guide to Improvement Plans. 2.4.8 At the completion of the Improvement Plan period the line manager should meet with the employee to review performance/attendance against the plan. The line manager must decide whether it is necessary to proceed to Formal Stage 2; this decision will be confirmed in writing. 2.4.9 In exceptional circumstances, if it is clear that the requirements of the plan have been fully met, the line manager and employee may agree not to hold a review meeting but instead to confirm in writing that the Capability Policy and procedure is paused but will be reinstated if there are further performance concerns again within 12 months. This must be confirmed in writing by the manager, with advice from HR, People & Talent as appropriate. 2.5 Formal Stage 2 2.5.1 The procedures and content of the Stage 2 meeting are similar to those described at Formal Stage 1. A member of HR, People & Talent will be present and the employee has a right to be accompanied. Whereas at the Stage 1 meeting, performance at the informal stage was being considered, at the Stage 2 meeting it is the outcome of the Improvement Plan set at Formal Stage 1 which is under consideration. 6
2.5.2 Meeting This meeting has two purposes: review performance/attendance that took place during the Stage 1 Improvement Plan period; and identify and, where necessary, set the next steps 2.5.3 The manager should set out their view of performance/attendance during the improvement plan and formally discuss concerns and, where appropriate, progress made. Following an adjournment, if the manager remains of the view that performance/attendance has not reached the required standard the employee should be advised that the manager will set a Stage 2 Improvement Plan. The potential outcomes of the Formal Stage 2 meeting are: Performance/Attendance remains unacceptable Capability proceedings continue. A Stage 2 Improvement Plan is set The employee should be advised that failure to meet the required standards may result in dismissal. Performance/Attendance has improved to an acceptable standard Evidence or mitigation provided at the hearing means that the performance/attendance is now deemed acceptable. The Capability procedure is paused but will be reinstated within 12 months if the same or similar issues arise again. 2.5.4 Following the meeting the line manager should summarise the discussion in writing. If performance/attendance remains unacceptable the employee will be set a Stage 2 Improvement Plan. This Plan is a further formal notification to the employee that performance/attendance remains a concern and represents the second stage of formal action. 2.5.5 The line manager should make the employee aware that if there is not sufficient improvement they may be at risk of dismissal as a potential outcome of Formal Stage 3. 2.5.6 On completion of the Stage 2 Improvement Plan period the line manager should meet with the employee to review performance/attendance against the plan. The line manager must decide whether it is necessary to proceed to Formal Stage 3; this decision will be confirmed in writing. 7
2.5.7 In exceptional circumstances, if it is clear that the requirements of the plan have been fully met, the line manager and employee may agree not to hold a review meeting but instead to confirm in writing that the Capability Policy and procedure is paused but will be reinstated if there are further performance concerns again within 12 months. This must be confirmed in writing by the line manager, with advice from HR, People & Talent as necessary. 2.6 Formal Stage 3 2.6.1 The general procedures and content of the Formal Stage 3 hearing are the same as those described at Formal Stages 1 and 2. However, as Formal Stage 3 may result in dismissal it will always be heard by a panel. The panel will consist of: a Chair, at Pay band E or above, who is in the line management chain, usually the employee s countersigning manager or a manager of similar level; a second manager, also at Pay band E or above but who is outside the line management chain and unconnected with the case. The second manager will be appointed by HR following discussion with the countersigning manager; and a member of HR, People & Talent who will be present for advice and to ensure procedural regularity but will have no decision-making role. 2.6.2 Once the panel members are identified the Chair should invite the employee, in writing, to the hearing, advising them of their right to be accompanied. This letter must also advise the employee that a potential outcome of Formal Stage 3 could be dismissal. For guidance on the employee s right to be accompanied please see section 4 below. 2.6.3 Hearing The hearing has two purposes: to review performance/attendance during the Stage 2 Improvement Plan; and to identify and, where necessary, set the next steps. 2.6.4 The line manager will normally be invited to the Formal Stage 3 hearing as a witness. 2.6.5 Any documentation that the Chair wishes to refer to during the course of the hearing should be shared with the employee in advance. The employee should also be advised that they may provide copies of any evidence or documents that they wish to be considered and these need to be submitted at least two working days before the Hearing. The hearing at this stage will include consideration of whether employment should be terminated because the employee has failed to meet the standards required. 8
2.6.6 In addition to the standard points covered at Stage 1 and Stage 2 meetings, the manager chairing the Stage 3 hearing should remind the employee that a potential outcome of Formal Stage 3 is dismissal. Once all of the evidence has been heard, the Chair should adjourn the hearing to consider any new representations made by the employee and to consider the panel s decision. 2.6.7 The Chair should wherever possible convey the final decision to the employee in person after the adjournment. Following this the Chair will always write to the employee giving them the decision and informing them of their right of appeal. 2.6.8 In exceptional circumstances, the panel may decide that redeployment should be considered as an alternative to dismissal. See paragraph 2.8 below. In these cases the employee will be advised that a decision to dismiss will be put on hold pending consideration of this. Following this, the panel will then either be reconvened to provide the final decision or the panel will communicate their decision in writing to the employee. 2.6.9 If it is not possible for the panel to conclude that performance/attendance has improved sufficiently to end the Capability process but there are sufficient grounds or mitigating circumstances to warrant giving the employee a further opportunity to improve, consideration may be given to setting a further Stage 3 Improvement Plan. It is expected that this option will only be utilised in very exceptional circumstances. The panel will agree the plan with the line manager and the Chair will confirm this in writing to the employee. In these cases, the panel will be adjourned for a specified period, following which it will be reconvened to review evidence from this period and reach its final decision. 9
2.6.10 The usual outcomes of the Stage 3 Hearing are: Performance/Attendance remains unacceptable In exceptional circumstances the employee may be considered to have the skills to work effectively in an alternative role. (See section 2.8) In such circumstances the panel will adjourn to consider whether redeployment opportunities exist. This will usually require further conversations with relevant PHSO colleagues. Improvement to an acceptable standard Evidence or mitigation provided at the hearing means that the performance/attendance is now deemed acceptable. The Capability procedure is paused but will be reinstated within 12 months if the same or similar issues arise again. If redeployment takes place monitoring will continue as appropriate. Where redeployment is not possible or appropriate the employee is dismissed. 2.7 Dismissal 2.7.1 When an employee is dismissed, this will be from a date set in accordance with their contractual notice period. Pay will cease from the date employment terminates. Pay will not be reinstated during the appeal period. However, should any appeal be successful and the employee reinstated, the employee will be restored to payroll with effect from the date pay ceased, and will be paid any back pay owing. 2.7.2 When an employee is dismissed on grounds of capability, the notice period is paid and the period of notice is in line with the employee s contract and service. Payment may be made in lieu of notice. 2.8 Redeployment 2.8.1 If performance/attendance remains unacceptable in the current position, one outcome of the Capability Hearing may be the consideration of an alternative role, where the skills required are different to those of the current role. Capability procedures for absence will not usually lead to redeployment opportunities, unless the absence is disability related, and a move may be a potential reasonable adjustment. Further information on disability and reasonable adjustments is given in the Healthy Workforce Policy. 2.8.2 Redeployment is only possible if a suitable position exists and following discussion with the existing line manager, the potential new manager and HR, People & Talent, it is agreed that this is a suitable course of action. 10
2.8.3 Redeployment, if available, will normally be to a lower grade and will be on the terms and conditions applicable for that position. Protection of salary does not apply if an employee is redeployed due to capability issues. 2.8.4 If the employee has a disability, it is expected that reasonable adjustments should be/have been provided to assist the employee in performing at the required level in their existing role. However, where reasonable adjustments are not possible for the role or have not been successful, redeployment will be considered as a reasonable adjustment. In these circumstances an assessment of skills will be undertaken rather than the need for a competitive application process. Redeployment to an alternative post which requires retraining may also be considered as a reasonable adjustment. 2.8.5 If redeployment is being considered but a suitable alternative position is not available, the Capability Policy and procedure will continue. At Stage 3 if the hearing panel is of the view that capability issues remain and no suitable alternative position is available, the employee will be dismissed. 2.9 Appeal 2.9.1 The employee has a right of appeal at Formal Stage 3 only, and if the decision is redeployment to a lower grade or dismissal. The appeal must be submitted to the Stage 3 hearing Chair, within 10 working days of the decision. The appeal letter should set out the full grounds for appeal as this will be the basis on which the appeal is considered. All documentary evidence which the employee considers relevant to the appeal should accompany the appeal letter or be submitted within 5 working days of the appeal being lodged. 2.9.2 The Appeal Manager will always be a Director/Head of Function or above, who is more senior than the Formal Stage 3 panel members. A member of HR, People & Talent will be present to provide procedural advice. The Appeal Manager will invite the employee, in writing, to the Appeal hearing, advising them of their right to be accompanied by a Trade Union representative or work colleague. 2.9.3 At the appeal, the Appeal Manager will hear the grounds of appeal and, if necessary, adjourn to collect and consider further evidence which will also be shared with the employee. This may include interviewing the manager who made the original decision and/or other employees. 2.9.4 Appeal Decision The Appeal Manager will set out their decision in writing. Decisions at appeal should be made, where possible, within 10 working days of the appeal hearing. The letter should include: the outcome of the appeal and the reasons for the decision; any actions agreed to resolve the situation if the appeal is upheld; a reminder that there is no further appeal. 11
3. Long Term Sickness Absence or Repeated Short Term Absence 3.1 When capability concerns are absence related and the employee s absence is long term, a case management approach involving the line manager and HR, People & Talent will be taken. The main purpose of this will be to achieve progress in facilitating a return to work wherever possible. The detail of how each case will be managed will be decided on a case by case basis. 3.2 Case management meetings will be informal until it becomes clear that the absence has become, or will become, unsustainable, at which point the employee will be invited to a formal meeting in accordance with the Capability procedure. See the Capability procedure in Section 2 for more information on sickness absence and disability. 3.3 PHSO aims to deal with capability concerns as quickly as is practicable. A brief period of sickness absence may delay the process but if there are repeated short periods or one long period of sickness absence then at least part of the process may continue in the employee s absence, this may include a final decision, depending on the circumstances. In such circumstances, the line manager/panel may choose to consider written representations from the employee. 3.4 In certain situations medical advice may be sought as to whether the employee is well enough to participate in the Capability process in the office. If necessary, with medical advice and with the employee s agreement, Capability meetings may be held away from the workplace. 4. Right of Accompaniment 4.1 Managers arranging formal meetings should advise employees that they may be accompanied by either a workplace colleague or Trade Union representative. Every effort will be made to accommodate the availability of the colleague/trade union representative accompanying the employee. However, where this causes the process to be unduly delayed, the employee may be requested to seek an alternative. The accompanying person may: address the meeting but not answer questions on behalf of the employee; confer with the employee during the meeting; request an adjournment where necessary. 4.2 All formal meetings are conducted within the bounds of strict confidentiality and breach of confidentiality may result in disciplinary action. All participants, including the accompanying person, must respect the need for confidentiality. 5. Special Considerations 5.1 Non Attendance at meetings and hearings If the employee wishes to attend the meeting/hearing but is unable to do so for an unavoidable reason, the meeting may be postponed. However, it will be re-arranged within 5-10 working days, or as soon as is practicable. If the employee cannot attend a second meeting it will go ahead in the employee s 12
absence and the employee will be asked if they wish to prepare a written submission for consideration. If an employee fails, without good reason and prior notice, to attend a Capability meeting or hearing, the line manager may decide to continue with the meeting as planned. During the meeting they will review the evidence available and reach a decision, in the absence of the employee. 5.2 Grievances against Capability Management action Circumstances may arise where an employee raises a complaint about the application of the Capability Policy and procedure or the actions of those enacting the process. Where possible, issues should be dealt with as part of the appeal at Stage 3. Where it is not appropriate for the matter to be addressed at the appeal stage, a grievance will be investigated by an independent manager. In accordance with the Grievance procedure it will run concurrently with the Capability Policy and procedure and will generally not prevent action under the Capability Policy and procedure continuing. 6. Timescales 6.1 All parties involved must make every attempt to expedite the Capability process as quickly as possible. However, the following timescales are suggested by way of guidance. Further information is given in the Managers Guide to Improvement Plans. 6.2 Improvement Plans will usually be for no more than 2 months. However, this will depend on: individual circumstances and the nature of the performance or attendance issue; and whether it is long enough to allow the employee to demonstrate an improvement. In exceptional circumstances it may be, for example extended to 3 months; the line manager should discuss such exceptions with HR, People & Talent. 6.3 Formal meetings should be arranged with at least 5 working days notice. 6.4 Appeals should be raised within 10 working days of the decision. An appeal against dismissal may be conducted after employment has ended. 6.5 Any participant in a Capability procedure who is unable to keep to the above timescales should immediately inform HR, People & Talent and or the employee. At all times a test of reasonableness will be applied to delays. 7. Ongoing Monitoring following Formal Stages All decisions will remain on record for one year and therefore if the improvement is only of a temporary nature, action will normally be resumed 13
at the next stage of the Formal Capability Policy and procedure which may include Formal Stage 3. 8. Keeping records 8.1 Managers dealing with performance issues should keep written records of each meeting with the employee at all stages, including during the informal stage, as these will provide evidence of discussions and the actions agreed. The length and format of the notes will depend on the nature of the performance issue and the circumstances around each case. Particularly in formal meetings the notes should be copied to the employee for their records and managers should be aware that any records kept are likely to fall within the Data Protection Act. 14