Ordinance XLI

This ordinance shall apply to all staff to whom paragraph 3 of Statute XXI refers [1]. Provisions for all other staff shall be found in the relevant Conditions of Service

POLICY

1. Policy content

1.1    The University is committed to creating and maintaining a work environment that is supportive and enables staff to achieve success in their role. However, it is recognised at times that staff may not perform at the required levels, for a variety of reasons. This policy and procedure is designed to help and encourage employees achieve and maintain required standards of performance.

1.2    All written documentation in relation to any part of this procedure should be considered within the University’s Code relating to Data Protection.

1.3    Throughout this policy and procedure “days” refers to calendar days unless specified otherwise but bank holidays and university closure days will not be counted. When arranging meetings, due account will be taken of a person’s working pattern and any annual leave that has been booked and authorised.

1.4    HR will provide advice and assistance on the use of the procedure.

1.5    All matters dealt with under this procedure will be kept strictly confidential.

1.6    Where an employee raises a grievance during the capability procedure, the capability procedure may be temporarily suspended in order to deal with the grievance. Where the grievance and capability cases are related it may be appropriate to deal with both issues concurrently. Advice must always be sought from HR in such situations.

1.7    At all stages of this procedure, due consideration will be given to making adjustments to enable members of staff to participate fully in meetings and hearings. This may include ensuring rooms are accessible or arranging for an interpreter to be present for example.

1.8    For all employees, the intention should be to adopt a positive developmental approach, with clear indications of what is required and carefully defined targets, over a reasonable timescale. Before any formal action is taken, the  responsible senior manager (in accordance with the table of authority) must ensure a thorough review of relevant factors is carried out to establish the likely cause. This may lead to a referral to the Occupational Health Department, or Counselling Service, instead of, or in advance of, action under this procedure. It may also lead to reasonable adjustments being considered in respect of disability, in accordance with equalities legislation. 

1.9    This procedure does not apply to the termination of appointment of a probationary employee, or an employee with less than six months' service.

1.10  Line Managers will ensure that all measures have been taken to ensure that the member of staff understands what they are expected to do within their role and receives appropriate support.

1.11  Continued unacceptable levels of performance, after reviews and opportunities for improvement, may lead to the termination of the contract of employment.

2. Capability Definition

2.1   The following procedure applies only to circumstances connected with capability. In this context capability means:

• having the necessary skills and aptitude and
• having physical and mental capacity

to carry out the duties of a job satisfactorily. A consequence of a lack of capability is underperformance. When considering a situation where an employee has a physical or mental impairment, due consideration should be given to whether any obligations set out in the Equality Act (2010) apply and a referral to Occupational Health may be appropriate.

2.2    Consideration should be given to whether the concerns regarding the employee’s performance are due to a lack of capability or due to conduct. A lack of commitment or engagement, a failure to undertake reasonable instructions or inattention to detail are more likely to be issues of conduct and should therefore be dealt with using the disciplinary procedure/ordinance.

2.3    Lack of capability may be seen in relation to separate tasks, or as a pattern covering most, or all, of an employee’s duties. It should be assessed with reference to the performance and attendance that would normally be expected from a non-probationary employee of that grade and job family. Evidence of lack of capability could include despite attempts to rectify, a failure to meet agreed standards of performance in the job description, poorly finished work, customer or colleague complaints, low work rate or non-attendance or poor attendance due to ill health. It can occur because of a number of factors such as inability to adapt to new ways of working, the working environment, personal problems or ill health. In the majority of cases it will apply to lack of capability demonstrated over a period of time but it may also refer to significant one-off situations, for example, a serious breach of health and safety regulations.

2.4    If there is clear evidence of a person’s performance improving to the required standards while a warning is issued only for performance to fall below acceptable standards within six months after it has expired, a decision may be taken to invoke the procedure at the stage at which it was last in operation.

2.5    It is important that appropriate action is taken to support and assist an employee promptly if it is noticed aspects of their job are appearing to be unsatisfactory as it is recognised that dealing with an issue promptly is likely to have greater chance of success.

PROCEDURE

3. Informal Action

3.1    It is very important that issues of lack of capability are raised with an employee as soon as they are identified. A meeting should be arranged with the employee to explain the concerns regarding their performance and a discussion held on the reasons for this and what support is required to enable them to meet the required standards of performance within a reasonable timeframe. Examples of the underperformance should be shared with the employee to enable them to reflect and respond to the concerns.

3.2    In some situations, e.g. if an employee is completing the New Lecturer’s Programme or if the employee has been subject to this Ordinance before, the informal stage may not be necessary given the level of guidance and support the individual is already receiving. In this situation, the informal stage can be deemed to have been completed and the formal stage can be invoked.

3.3    An informal record of the main points of the discussion and the agreed actions should be shared with the employee which could be in the form of an informal improvement plan. In some situations a structured improvement plan may be beneficial to them which, where appropriate, uses the PDR objectives as the basis for the plan.

3.4    The employee’s performance should be monitored regularly and where progress is made, it is important that this is recognised and communicated to them.

3.5    If performance does not improve to expected levels within a reasonable timeframe the manager may consider taking more formal action, as set out below.

3.6    Although it is important to ensure that employees have reasonable time to improve their performance, the informal stage should not be extended excessively and should be concluded within 12 months maximum. This does not mean that the informal stage must last the full 12 months and in the majority of situations a shorter period will be sufficient.

3.7    Before any formal action is taken the responsible senior manager must identify whether the issue is health related or not (if this has not already been covered during the informal stage). Where appropriate a referral to Occupational Health may be made.

3.8    If it is not health-related then the procedure below should be followed. If health issues arise during the course of the procedure, Occupational Health advice should be sought before any formal decisions are made.

3.9    If it is health related and the individual is absent (either continuously or discontinuously) from work, then the Managing Sickness Absence Policy and Procedure should be followed. Ill health, whether physical or mental, is a capability issue, but is dealt with separately as it has distinct issues.

3.10  At this time the responsible senior manager will also check whether the matter should be dealt with under this Capability Procedure or the Disciplinary Procedure/Ordinance as set out in 2.2 above.

4. Formal Action

4.1    The normal sequence of events for formal action is set out below.   In circumstances where lack of capability has, or may, lead to serious consequences in terms of health and safety or the protection of the business or assets of the University, this procedure may be started at any stage including dismissal, notwithstanding the right of appeal.

4.2    At any formal meeting the employee may be accompanied by a trade union representative, or fellow employee of their choice – legal representation is not allowed. 

5. Stage 1 Capability Meeting

5.1    The employee will be informed in writing of the areas in which capability is seen to be inadequate and called to a meeting with the responsible senior manager. The employee will be given a minimum 5 calendar days’ notice of the meeting.

5.2    At this meeting the manager’s approach should not be punitive; it should be open, constructive and focused on improving the employee’s performance to the necessary levels.

5.3    The meeting should include:

• Confirming the facts of the situation.
• Ensuring understanding of the performance required and explaining why the performance is not satisfactory.
• Giving the employee the opportunity to respond and comment on the performance issues raised.
• Identifying and discussing the possible cause/s of poor performance, including any mitigating factors.
• Consideration of whether training, coaching, counselling or additional resources are appropriate. In some situations a mentor may be appropriate.
• Discussing with the employee and their representative what improvements are required and the timeframes for review, ensuring that the objectives are relevant and achievable.

5.4    If the responsible manager does not accept the explanation given by the employee and no agreement can be reached, a formal notification that action is being taken under this procedure will be issued.

5.5    Following consultation with the employee and representative the responsible manager will produce a Capability Improvement Plan that will detail the improvements that need to be achieved by the date of the review meeting (see point 5.6 below) and any necessary support that has been agreed. In all cases, the appropriate resources required to implement the improvement plan must be identified and provided. In particular, where an inadequate level of skill has been identified, the Capability Improvement Plan must include details of any staff development support to be made available or other appropriate measures that will be taken. A copy of the notification and the Capability Improvement Plan will be placed on the employee's personal file and if requested by the employee, also be given to the employee’s representative.

5.6    During this first improvement period, an interim review meeting will take place. This meeting should normally be half-way through the review period. The purpose of this meeting is to provide interim feedback between the responsible senior manager and the employee on progress so far. A date for this meeting should be set well in advance to enable all parties to attend.

6. Stage 2 Capability Meeting

6.1    A formal review meeting must be scheduled between the responsible manager and the employee – the date should allow a realistic period for the achievement of (or for some situations where objectives are long term or strategic, progress towards) the targets set in the Capability Improvement Plan. Depending on the nature of the work involved and the type of targets that have been set, the timescales will depend on the particular situation, however as a guide, an improvement should usually be seen within 6 – 8 weeks for less complex matters and 8 – 12 weeks for more complex matters.

6.2    If the conclusion of the formal review meeting is that capability has improved sufficiently, no further action will be needed. This should be recorded in a letter to the employee which will include a reminder that if performance should fall to an unacceptable level within 6 months of the formal notification the responsible senior manager will re-convene the review meeting and re-start the procedure at point 6 above.

6.3    If, by the time of the formal review meeting, there has been insufficient improvement, without an acceptable explanation, the employee will be given a formal written warning. The formal written warning will indicate that failure to reach the required standard of capability by the next review date could lead to demotion, re-assignment to a more suitable post, or dismissal. The responsible senior manager will review the Capability Improvement Plan produced when the first formal notification was issued and amend or add to it as appropriate in discussion with the employee. A copy of the formal written warning and any amendment to the Capability Improvement Plan will be placed on the employee's personal file and, if requested by the employee, also be given to their representative. This formal written warning shall remain on file but will be disregarded after 12 months if no further action is taken.

6.4    An interim review should take place half-way through the second review period. The purpose of this meeting is to provide interim feedback between the responsible senior manager and the employee on progress so far. A date should be set well in advance of the meeting to enable all parties to attend.

7. Stage 3 Capability Meeting

7.1    A further review meeting must be scheduled between the responsible senior manager and the employee – as before, the date should allow a realistic period for the achievement of the targets set in the Capability Improvement Plan and would typically be no more than 12 weeks ahead.

7.2    If the conclusion of the review meeting is that capability has improved sufficiently no further action will be needed. This should be recorded in a letter to the employee with a reminder that if performance falls to an unacceptable level within 6 months of the formal written warning the responsible senior manager will re-convene the review meeting and re-start the procedure at point 7 above.

7.3    If the responsible senior manager’s judgment is that capability remains inadequate without an acceptable explanation, then the employee will be given a final written warning. The final written warning will indicate that failure to reach the required standard of capability by the next review date could lead to demotion, re-assignment to a more suitable post, or dismissal. The Capability Improvement Plan will be updated as appropriate with reasonable targets for improvement. A copy of the formal written warning and any amendment to the Capability Improvement Plan will be placed on the employee's personal file and, if requested by the employee, also be given to their representative. This formal written warning shall remain on file but will be disregarded after 12 months if no further action is taken.

7.4    An interim review should take place half-way through the second review period. The purpose of this meeting is to provide interim feedback between the responsible senior manager and the employee on progress so far. A date should be set well in advance of the meeting to enable all parties to attend.

8. Stage 4 Capability Meeting

8.1   A final review meeting must be scheduled between the responsible senior manager and the employee – as before, the date should allow a realistic period for the achievement of (or for some roles, progress towards) the targets set in the Capability Improvement Plan and would typically be no more than 12 weeks ahead.

8.2   As a potential outcome of this meeting is dismissal, it is important that the manager conducting the meeting complies with section the table of authority set out in section 3.6.3 of ordinance XXXV/disciplinary procedure.

8.3   If the conclusion of the final review meeting is that capability has improved sufficiently, no further action will be needed.  This will be recorded in a letter to the employee which will include a reminder that if performance should fall to an unacceptable level within 6 months of the formal notification the responsible senior manager will re-convene the review meeting and re-start the procedure at point 8.above

8.4   If, by the time of the final review meeting, there has been insufficient improvement, without an acceptable explanation, the findings of Stages 1, 2 and 3 will be taken into account as well as the views and explanation of the member of staff before a decision is reached.  A decision will be made on the appropriate action, this may include demotion, re-assignment or dismissal. This will be confirmed in writing and will advise the member of staff of the right of appeal. 

9. Appeal

9.1   An employee shall be entitled to appeal against any formal action taken, in accordance with Ordinance XXXVI.

10. Formal Improvement Plan

10.1   There is no set format to the Improvement Plan and it should be developed in the most appropriate way to support the employee to achieve the required performance levels. An informal improvement plan may be used in the informal stage to support the employee in understanding the required levels of performance.

10.2   The objectives contained in the Improvement Plan should be clear and understandable. Careful consideration should be given to ensure that they are pitched at the correct level for the job role and the employee’s current levels of capability.

10.3   In some situations, it may be appropriate to break work down into smaller tasks as a way of providing greater support and direction to the employee. An example of this might be to ask an academic to prepare a first draft of a research output for internal peer review rather than producing a fully completed research output at first attempt.

11. Capability and Performance and Development Review (PDR)

11.1   PDR and the capability procedure are separate processes but as an employee’s performance is discussed in both of them it is inevitable that there will be some cross-over.

11.2   It is very important that issues of capability are not stored up for the PDR discussion as any concerns should be raised with the employee in a timely way.

11.3   Similarly the PDR should not be used as a means of monitoring progress where underperformance has been identified.

11.4   If capability issues are identified during the PDR, the capability procedure should begin following the PDR meeting, at the informal stage. Progression to the formal stage (should it be necessary) must be determined by the employee’s progress and not by the PDR timetable.