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Capability policy and procedure

How we consider and deal with unsatisfactory performance and support staff in such cases.


1. Aims of this policy and procedure

1.1. It is the aim of this policy that the University is a place where all staff are enabled to work and perform to the best of their ability to meet the needs of the University. The effective management of performance of staff needs to be an integrated and ongoing part of day to day activity in the University so that all members of the staff meet their requirement to achieve or surpass an acceptable level of performance. All members of the staff of the University need to be clear about the standards expected in their roles, to be set challenging yet realistic objectives and to receive appropriate feedback, development and training.

1.2. It is recognised that from time to time an individual’s performance or capability may fall below the standards expected of a role. It is, therefore, important that the University has a procedure in place which sets out how it will consider and deal with unsatisfactory performance due to lack of capability so that staff are given appropriate support to help them improve their performance. The University expects this to be carried out fairly and consistently across the University.

2. Scope

2.1. The procedure below applies to all members of the University staff with the proviso that for those staff covered by the provisions of Statute 25 (see Annex A) any necessary formal action will be taken in accordance with the relevant paragraphs of Statute 25 Parts III, IV (if medical capability is a possible issue) and V (Appeal). For these staff, their managers should aim to meet the principles set out in the policy section of this document.

2.2. In this document the term line manager is used to describe any member of staff with managerial or supervisory responsibility for other staff.

2.3 Cases of incapacity due to ill health should normally be dealt with under the University’s Sickness Absence policy and procedure. Where, having initially followed the Sickness Absence policy and procedure, it is deemed the issue is one of capability the Capability procedure will be used.

2.4. This policy and procedure applies to staff who have passed probation. There is a separate University policy and procedure for managing performance issues during the probation period.

2.5. The policy and procedure does not apply to self employed people or staff contracted by other organisations (including employment agencies) or on secondment to the University, who are covered by their own employer’s procedures.

2.6 Staff may be referred into either the informal or formal procedures of this policy from an investigation or hearing under the Disciplinary Policy and Procedure or an investigation under the Dignity and Respect Policy and Procedure where it has been found that there are issues of capability.

3. What the University expects from staff

3.1. The University expects all staff to:

  • carry out their job to the standard that is expected of and required for the role and grade
  • understand the impact of their job performance on colleagues, students, customers and the wider University
  • clarify expectations, tasks, objectives and behaviours with their line manager if they are unclear about them
  • engage fully in their induction, the setting of their objectives and the assessment and monitoring of their performance through the University’s probation procedures and following the completion of probation through a process of performance review to develop their skills, knowledge and performance in their role to the highest possible standard. This process of review will be carried out using the University’s Staff Development and Performance Review (SDPR) process
  • bring all relevant issues which may affect their work and performance to the attention of their line manager at the earliest possible opportunity
  • co-operate with their manager to help improve any aspects of their work and performance which are considered to be unsatisfactory
  • attend meetings to discuss any aspects of their performance which are considered unsatisfactory as requested to do so

4. What staff can expect from the University

4.1 You can expect the University to:

  • treat performance issues fairly and consistently across the University
  • take action promptly and look into the root causes of the performance issue
  • be clear about the required improvement and the relevant timescales
  • give appropriate support, help and where necessary training, to improve performance
  • deal with minor unsatisfactory performance issues through informal intervention
  • instigate the formal procedure only if there is no significant and lasting improvement in performance following informal intervention
  • dismiss staff with appropriate notice if they do not perform their role to the required standards after being given the appropriate opportunity to improve as set out in this policy and procedure

5. What the University expects from line managers

5.1 The University expects all of its line managers to:

  • set out clear expectations of performance and what is necessary to achieve that performance
  • set objectives and monitor performance through the probation process for applicable staff, including conducting mid-probation and end of probation reviews, identifying areas of effective performance and any areas of performance that fall below the required standards and supporting the member of staff to be able to make the necessary improvement(s)
  • feedback constructively to staff on their performance as soon as possible after that performance has occurred, praising good performance and identifying where performance is below required standards
  • review the performance of all managed staff effectively identifying areas for improvement and agreeing a plan for how this improvement can be achieved. This will be managed through the University’s SDPR process through which the line manager will identify areas for development that enable a member of staff to realise their potential and progress their careers, as well as agreeing a plan for any development aimed at improving performance
  • identify where performance is not satisfactory at the earliest possible opportunity
  • take action promptly where performance issues are identified, to investigate the root causes of the performance issue(s) and to meet with the member of staff being clear about the required improvement, the relevant timescales and any support or intervention to assist improvement and document this in writing
  • to take advice from the Department of Human Resources – normally from the relevant Human Resources Business Partner or Advisor
  • to manage staff whose performance is below the required standards of their post in line with the advice of the relevant Human Resources Business Partner or Advisor and this procedure

6. Causes of unsatisfactory performance or lack of capability

6.1. There are a number of factors which may affect a member of staff’s ability to perform the job to the standard required. Appropriate consideration should be given to factors put forward by members of staff, where those factors are supported by evidence. Unsatisfactory performance caused by carelessness, lack of effort or negligence may not be a capability issue but may be a misconduct issue which will be addressed under the University’s Disciplinary Policy and Procedure. Unsatisfactory performance which is the result of poor behaviour or attitude may be viewed as misconduct depending on the circumstances. Similarly unsatisfactory performance may be caused by health issues. Advice should be sought from the Department of Human Resources.

7. Informal procedure (all staff)

7.1. The line manager will discuss any concerns over the performance of a member of their staff with them in a timely manner and seek to identify the cause of their performance problem and will seek to assist them to improve their performance. Where appropriate, this may be through the use of a work plan. They will establish whether the poor performance is a matter of capability or misconduct. If it is judged to be misconduct, it will be dealt with under the University’s Disciplinary policy and procedure.

7.2. In cases where it is determined that the incapability of a member of staff is affected or caused by health issues, the line manager should consider whether it is possible to adjust their working conditions or arrangements in the light of these issues on a temporary or longer term basis in line with the University’s Sickness Absence policy and procedure. If the capability issues arise from a disability under the Equality Act, the University has a duty to make reasonable adjustments in the workplace. In these cases the Department of Human Resources will obtain professional advice through Occupational Health or another appropriate advisor and the member of staff will be expected to co-operate fully with this process.

7.3. If a member of staff is unable by reason of ill health to perform their duties satisfactorily, allowing for any adjustments that may have been agreed with their line manager, they may be required to take sick leave. By presenting themselves for work, a member of staff is committing to performing their duties to an acceptable standard.

7.4. Informal intervention is often enough to return unsatisfactory performance to satisfactory levels. The line manager will confirm to the member of staff in writing the concerns that they have, give them regular feedback (as may be appropriate in the circumstances) on their performance and advise them whether or not their performance has improved sufficiently to reach the required standard.

7.5. If as a result of the informal process, the performance of the member of staff does not improve within a reasonable period, normally not less than two months, or the improvement is not sustained or performance deteriorates further, their line manager will move to the next stage which is to deal with their unsatisfactory performance through the formal procedure.

8. Formal procedure (excluding staff covered by Statute 25)

8.1. The member of staff will be invited in writing to attend a formal performance improvement meeting with their line manager. They have the right to be accompanied at this meeting by a ‘companion’ (a trade union representative or a work colleague as set out in section 13). They will be provided in advance of the meeting with a written statement of the reasons why their performance is considered unsatisfactory. At the formal meeting their companion is entitled to address the meeting, ask questions and confer privately with them. Written notes of the meeting will be taken. A member of Human Resources staff will normally be present to give advice.

8.2. The member of staff will be given at least five working days' notice of the meeting and they and their representative should take all reasonable steps to attend. The meeting will only be re-arranged at their request in the following circumstances:

  • they provide a good reason for not being able to attend
  • their work colleague or TU representative cannot make the arranged date

8.3. If the meeting has to be re-arranged, they will be given at least two working days' notice of the revised timing. They will be expected to attend the revised meeting unless there are special circumstances preventing them from attending. If they are unable to attend, they should advise their line manager as soon as is reasonably practicable before the meeting is due to take place.

8.4. If the re-arranged meeting is more than five working days from the date of the original meeting and their companion cannot make the re-arranged meeting, the member of staff must find a replacement companion.

8.5. The formal performance improvement meeting may be adjourned if required for the purpose of clarifying or gathering new information. The member of staff will be advised of how long the adjournment is expected to last. The member of staff will be advised of any new information or of any clarification obtained and given a reasonable time to consider it prior to the meeting being reconvened. The meeting may be reconvened on the same day if the clarification sought is minor, or at a later date to allow further information to be considered by both sides.

8.6. Once the line manager is satisfied that all relevant information has been gathered and properly considered, they will inform the member of staff in writing of their decision. Should a performance warning be issued the member of staff will be informed of:

  • the type of warning being issued (see section 9)
  • the level of improvement required
  • the period in which the improvement is expected to be achieved (the review period)
  • the consequences if no improvement is made during the review period
  • the date of the next formal meeting to consider progress after the review period
  • the length of time the warning remains active (see section 10)
  • their right to appeal the decision

8.7 The decision and action will be confirmed to the member of staff in writing and they will receive a copy of the notes of the meeting. If they consider that the notes do not properly reflect the discussion, they have the right to propose amendments to the record within five working days. Where these are agreed, the record will be duly amended. If their proposed amendments are not agreed, their comments will be attached to the record.

9. Formal warnings for performance

9.1. All formal stages of the capability procedure must be followed in sequence. A formal review of progress must occur at the end of any warning period. A formal performance improvement meeting must precede the issue of any warning. The formal meeting to review progress against any previously issued warning will, if there has been no significant and lasting improvement, constitute the performance improvement meeting for the next level.

Stage 1: First written warning

9.2. If following a first performance meeting the line manager deems that performance or capability is unsatisfactory, the member of staff will be given a first written warning which will detail the points in 8.6.

Stage 2: Final written warning

9.3. If there is insufficient improvement, or if improvement is not sustained whilst the first written warning is still active, following a formal meeting a final written warning will be issued setting out the same details as at 8.6.

Stage 3: Dismissal

9.4. If there is still insufficient improvement, or if improvement is not sustained whilst the final written warning is active, you will normally be dismissed by giving notice. The University will set out in writing the reason for dismissal and set out their right of appeal. The University may, entirely at its discretion, offer redeployment to an alternative role if any suitable alternative is available at the time. The redeployment will be on the terms and conditions appropriate to the alternative role.

10. What an active warning is and how long they remain active

10.1. Being on an active warning means that if the performance of that member of staff is not at a satisfactory level, while a warning is active the University can take that warning into account when deciding what action to take. Once the warning has ceased to be active, it will not be taken into account for those purposes, although a record will be kept on the personal file of the member of staff for a reasonable period of time.

  • first written warnings will normally remain active for 12 months
  • final written warnings will normally remain active for 12 months

10.2. Should the performance of the member of staff be considered unsatisfactory in the future, the procedure will start at the appropriate stage.

11. Appeals

11.1. If a member of staff wishes to appeal against a first written warning, final written warning or dismissal, they should submit their appeal in writing to the Director of Human Resources within 10 working days of receipt of the letter confirming their warning, setting out clearly the grounds for their appeal.

12. The appeal hearing

12.1. The University will aim for an appeal to be heard within four weeks of the appeal being lodged, unless otherwise agreed between the parties.

12.2. Appeals against a first or final written warning will be heard by the Head of Department (or their nominee who must be senior to the manager who made the original decision and not have had any previous involvement with the proceedings). Where there is no appropriate person within the Department, an independent Head of Department (or their nominee) may hear the appeal. If the original performance improvement meeting was held at Head of Department level, the Director of the Service or Dean of Faculty or School should hear the appeal. The manager will have the authority to overturn the warning if appropriate, but may not impose a higher level warning. A member of the Human Resources will be present to advise on proceedings. Written notes of the appeal hearing will be taken.

12.3. An appeal against dismissal will be heard by a panel of three members chaired by a Pro-Vice-Chancellor advised by the Director of Human Resources or their deputy.

12.4 After the hearing, the manager hearing the appeal will, after they are satisfied that all the relevant information has been gathered and properly considered, advise the appellant in writing the outcome of the appeal. There is no further level of internal appeal.

13. Representation

13.1 A member of staff has the right to be accompanied at formal meetings under the formal procedure above by a ‘companion’ as defined by the ACAS Code of Practice – namely a University work colleague or accredited trade union representative. A trade union representative who is not an employed official must have been certified by their union as being competent to accompany a worker.

13.2 There is no right to be accompanied by a companion at meetings under the informal procedure although staff may seek advice on a confidential basis from a trade union representative before or after such a meeting. There may be exceptional situations where the line manager, Human Resources Business Partner and the member of staff all agree for a companion to be present.

14. Dismissals for some other substantial reason or legal reason

14.1 If issues arise during a member of staff’s employment in the University that may result in a dismissal on the grounds of some other substantial reason (SOSR) or a legal reason, these will be investigated by their line manager. It may be necessary to suspend the member of staff during this investigation. It should be emphasised that suspension is a precautionary measure only in order to enable an investigation to be carried out and is not a sanction in itself.

14.2 Where the investigation identifies a case to answer on either ground, the member of staff should be invited in writing to attend a formal hearing under this paragraph at which the potential ground for their dismissal will be considered and at which their employment may be terminated with appropriate notice. The meeting should be chaired by the manager of the line manager, the Head of Department or another appropriate manager. There should be a Human Resources representative (normally a Human Resources Business Partner or Advisor) at the hearing to advise them. The member of staff must be given the opportunity to be represented or accompanied in the hearing by a work companion – either an accredited trade union representative or a work colleague. In the formal hearing, the member of staff will be given an opportunity to explain their position on the matter before a decision is made.

14.3 Staff dismissed for SOSR or a legal reason will be given a right of appeal. This will be managed in line with section 12.

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Date of last review: June 2014