Performance capability procedure

Introduction

This document provides guidance to managers who need to address performance issues which are as a result of capability. Reasonable offers of support and assistance will be provided to individuals who require help to attain and maintain an acceptable level of performance, however, in the event that the required improvement is not reached, despite appropriate efforts to assist employees, this approach will be used.

This process does not cover situations which are a result of conduct issues; in this case please refer to the disciplinary policy and procedure.

This process aims to:

  • help individuals to achieve acceptable levels of performance
  • ensure consistent and fair treatment is used

Key principles

  • This process should be used when reasonable efforts to reach the required level of expected performance have not been achieved
  • The focus must be on supportive management action and the clear definition of requirements to help the employee to understand and achieve required standards within a reasonable timescale
  • Breaches of the right to confidentiality by any employee, including management, may be treated as a disciplinary matter

Before entering the performance capability process

  • Managers should be able to demonstrate that fair and reasonable effort has already been made to help the employee achieve acceptable performance standards using the performance appraisal system, and this has been unsuccessful
  • The time period to do this is dependent on the individual circumstances, usually no more than 3 to 6 months. This period should allow the manager and the employee the opportunity to discuss where the issues lie; determine why performance levels are not acceptable; and put measures in place to achieve the required improvements via the performance appraisal system
  • Where, following discussion with the employee, it is established that a health related issue is affecting performance; managers should ensure that reasonable adjustments are in place to help the employee achieve the required standard of performance in compliance with the Equality Act 2010.

The performance capability process

When moving to the formal performance capability process it is important to clarify which manager will be responsible for taking the process forward with the employee and HR. It is recommended that the immediate line manager who dealt with the situation informally using the performance appraisal system continues to manage this process.

  • The manager should consult with their own manager and the relevant HR adviser.
  • The process must be accurately recorded and clear performance standards and timescales should be set to demonstrate improvement.

Responsibilities

Every employee must:

  • accept responsibility to reach and maintain the expected standards of performance
  • meet to discuss their performance and development with their manager when this is causing concern
  • ensure that they understand what is required of them and seek and gain clarification where necessary

Managers must:

  • meet with the employee as soon as concerns are identified with performance and ensure that the required objectives are clearly defined and effectively communicated
  • manage less than effective performance immediately and seek advice and guidance from HR, as necessary. This must not wait until mid-year or end-year performance reviews before taking appropriate action
  • identify any further development requirements and agree appropriate timescales
  • record all discussions and ensure all actions are captured and provided to the employee in writing
  • HR is available to provide professional advice, guidance and support to both employees and managers

Additional support

RoS' occupational health adviser and the employee assistance programme provider are also available for guidance.

Trade union

Employees can seek the advice and support of their trade union at any stage.

Performance capability process

Stage 1

Any issue regarding performance should be addressed promptly and supportively. The employee should be made aware that they are not performing to the required standard. The expected performance standards should be clearly explained. Where further development or training requirements are identified these should be arranged and a reasonable and defined monitoring/review period agreed. The employee should be offered relevant guidance, coaching and supervision to help them to reach the standards expected. All avenues should be considered to assist the employee in reaching these standards and regular feedback should be provided. These details should be confirmed to the employee in writing clearly outlining what has been discussed and agreed at the performance review meeting and should specify the timeframe for improvement to be demonstrated.

The employee should be made aware of the potential consequences of failure to reach the required standard; this may include reversion to a previous grade, redeployment to another work area or, as a last resort, dismissal.

At all stages of this process employees should receive advance notice of meetings and have the right to be accompanied by a work colleague or a trade union representative.

Stage 2

At the end of the first monitoring period a performance review meeting should be held with the employee. If the employee's performance has reached and been maintained at a satisfactory level no further action will be required and the employee will be informed of this in writing.

If the employee's performance has not improved to a satisfactory level, the required performance standards should again be clearly explained and the employee's performance during the first period should be reviewed. Where there has been some improvement this should be noted, however employees must reach and maintain the expected standards set for the role. A further chance to reach the expected performance will be provided and appropriate supervision and coaching will be offered along with regular feedback.

A further reasonable and defined monitoring period should commence and the outcome of this review meeting should be confirmed to the employee in writing specifying what has been discussed and should include a timeframe for improvement to be demonstrated.

Final review meeting

At the end of the second monitoring period a further review meeting should be held with the employee. If the employee's performance has reached and been maintained to a satisfactory level no further action will be required. This should be confirmed in writing to the employee.

If the employee's performance has not improved to a satisfactory level, this should be explained to the employee and a hearing will be scheduled.

Invite the employee to a hearing

This meeting should be held without unreasonable delay whilst allowing the employee reasonable time to prepare their case.

All parties (and their representatives) should make every effort to attend the hearing. At the hearing the chair should explain the process to the employee and present the evidence that has been gathered. The employee should be allowed to set out their case and respond to the performance issues that have been raised. The employee should also be given a reasonable opportunity to ask questions and present evidence. They should also be given an opportunity to raise points about any information provided by witnesses.

Where an employee is persistently unable or unwilling to attend the Hearing without good cause, the hearing will take place in the employee's absence. The chair will then make a decision on the evidence available.

Right to be accompanied at the hearing

Employees have a statutory right to be accompanied to a hearing by a trade union representative or workplace colleague. The trade union representative or work colleague has the right to address the hearing, sum up the employee's case and confer privately with the employee during the hearing. They are not entitled to respond to questions on the employee's behalf.

If by the end of the performance capability review period the employee has achieved and maintained the standard of performance required they will be removed from the performance capability process. However, if there are further performance issues and performance becomes unacceptable within a 12 month period from the date of removal from the performance capability period, then the employee may be placed back onto the performance capability from the stage reached prior to improvement.

Appeal

At every stage of the capability process the employee has the right to appeal the decision. The appeal must be in writing and submitted within 10 working days of the date of the decision to the appropriate appeal officer.

The appeal must detail the grounds for appeal i.e. why the decision was unfair or why the level of action taken was too severe. If the employee wishes to present additional new evidence to support their case, then this must be provided to the appeals chair at least 2 working days in advance of the appeal hearing. To ensure impartiality the appeal will be held by an appropriate independent manager and an independent HR adviser wherever possible.

Eligibility for compensation

Employees who are dismissed on the grounds of performance capability may be eligible for compensation under the rules of the principal civil service pension scheme (PCSPS). Details can be obtained from HR.