Capability procedure

Policy statement and guidelines

Thorough recruitment processes play a significant role in accurately assessing a member of staff’s skills and abilities against the requirements of the job.  A strong match between the member of staff’s capabilities and the requirements of the job minimises the likelihood of underperformance that leads to the need to invoke the Capability Procedure.

The University of Dundee is committed to being a fair and reasonable employer and recognises that situations can arise where a member of staff underperforms in their work duties due to a genuine lack of capability that is not related to indiscipline or lack of compliance with reasonable management directions.  In these circumstances the University seeks to encourage and support staff achieve an acceptable standard of performance.

The basic principles of fairness set out in the ACAS Code of Practice on Disciplinary and Grievance Procedures are reflected in this separate Capability Procedure designed specifically to address performance issues arising. 

The aim of this procedure is to ensure that a fair and consistent approach is taken where there are management concerns about a member of staff’s performance.  This is to ensure the member of staff who is experiencing performance difficulties is supported and managed appropriately and has access to support, training and supervision to assist them achieve an acceptable standard of performance within a reasonable timeframe.

The University wishes to reassure staff that the Capability Procedure will be used for the purpose intended i.e. to assist and ensure that staff are operating at an acceptable level and that the People Support team and campus union colleagues will work together to ensure that the Capability procedure is applied in the spirit intended. Where the member of staff believes that they have been treated unfairly under the Capability Procedure they will be entitled to use the Grievance Procedure.  In order to minimise stress, the Grievance Procedure and the Capability Procedure may overlap in accordance with the ACAS Code of Conduct which allows for the procedures to run concurrently where matters are related.

Capability is defined in Section 98(3)(a) of the Employment Rights Act 1996 by reference to “skill, aptitude, health  or any other physical or mental quality”.  In cases where incapacity results from sickness or disability, these issues will be addressed through the University’s Sickness Absence, Disability and Long-term Ill-Health Policies and with reference to the Equality Act 2010. In relation to the Long-term Ill-health Policy, the People Support team will provide the member of staff with support in the event they wish to explore retire on grounds of ill-health.

Discipline Leads/Deans/Directors must consult and involve the People Support team in all cases where capability is an issue.

The member of staff who is undergoing the Capability Procedure is entitled to be supported or represented by their trade union representative or work colleague at each stage of the procedure.

The Capability Procedure will be used where serious or persistent shortfalls in performance continue (i.e. where performance is below an acceptable standard for the job grade and salary level).  It should not be invoked to address minor or transient issues and management concerns require to be evidence-based. 

The academic probationary process should be used to manage performance during probation so, for probationary lecturers, the Capability Procedure will not be used during a probationary period nor used shortly after the successful completion of a probationary period.  Due regard therefore, should be given as to how recently that process has been completed.

In the initial stages the Capability Procedure will be initiated and led by the line manager, as appropriate to the level/seniority of the member of staff who is experiencing performance difficulties.  The People Support team member will advise on the appropriateness of the use of the procedure, recommend the person to conduct the process and will advise the line manager throughout the process.

The Capability Procedure offers two separate procedures: the Informal Procedure and the Formal Procedure.  

In all cases, the Formal Procedure should not be applied until the Informal Procedure has been exhausted, and has failed to bring about a satisfactory resolution.  However, the Formal Procedure should not necessarily follow in all cases; its use is appropriate only where the informal procedure has not succeeded or where a member of staff has not responded adequately to the support provided and where dismissal is potentially an ultimate consequence of its continuance.

A first critical part of the Informal Procedure is the discussion with the employee about opportunities to improve and the opportunity for the employee to bring to the line manager’s attention any circumstances that may explain the shortfall in performance which has been identified.  At this stage it should also be considered whether the use of another of the University’s policies (e.g. Sickness Absence Policy and Procedure, Work Life Balance Policy) is more appropriate.  The People Support team member will provide guidance to the line manager on the advisability, or not, of stopping the Capability Procedure at any stage and considering the circumstances under another policy.  The University’s EDR initiatives including mediation may also be an alternative option to consider at this stage.

The purpose of the Capability Procedure is to set in place all reasonable training and support mechanisms to enable the member of staff to reach an acceptable standard of effectiveness, within a reasonable timescale.   The timescale will allow input from the member of staff and their representative and will take account of the complexity of work. A reasonable period of time to allow for the member of staff concerned to demonstrate improvement to the standard required.  Input from the member of staff will be considered by the line manager when specifying the timescale for improvement and agreement sought.

However, continuing failure to reach an acceptable standard of work performance after the Capability Procedure has been followed may result in the need to consider job redesign to alter the scope of duties, redeployment to an alternative post or, as a last resort, dismissal from the University’s employ.

Where a new or existing manager alters the structure and/or job content of a member of staff’s role, which has led to a mismatch between the skills of the member of staff and those required for the new post, every reasonable effort will be made to redesign the job or to provide alternative retraining to allow the member of staff to utilise their strengths.  A change to job content would normally take place only after consultation with the individual and their trade union representative or work colleague, if they wished representation.  Alternatively, the University will seek to identify redeployment opportunities which are suited to the member of staff’s abilities.

This policy does not supersede or compromise any member of staff’s rights under current employment legislation.  Where a member of staff raises a grievance during a Capability Process, it may be appropriate and beneficial to deal with all issues concurrently, where they are inter-related.

The University will comply with the current equality, including disability, legislation in force at the time and guidance provided by relevant bodies e.g. ACAS.

Principles of the Capability Procedure

The Capability Procedure provides for the fair and equitable treatment of all staff and will be applied reasonably, consistently and without discrimination or reference to any protected characteristic, part-time, fixed-term or trade union status.

The main focus of the Capability Procedure is on supporting the member of staff to attain an acceptable level of performance, rather than on punitive measures.

Issues of capability should be identified and dealt with promptly by the line manager with advice from the People Support team.

Where a capability issue has been raised with a member of staff they will have the right to state their case in response to management concerns.

All parties involved will be entitled to be heard with dignity and respect.

An appropriate level of confidentiality confined to a ‘need to know’ basis will be maintained, involving only the necessary parties.

The document: Formal Capability Procedure Action Plan ‌will be used in every case that is subject to the Formal Capability Procedure. 

Where relevant, a decision not to submit an academic member of staff’s output to the Research Excellence Framework will not, in itself, result in the informal or formal Capability Procedure being invoked.

The Informal Capability Procedure

As soon as a member of staff’s performance gives cause for concern, in the first instance the line manager will arrange an informal meeting with the member of staff to explain and discuss the matter, in a supportive manner.  The line manager will:

• give examples, provided in writing,  so a good understanding is achieved of the matter arising, with reference to the job description, the HERA profile and any previous OSAR documentation which is relevant
• specify the standards of performance expected
• ask the member of staff whether there are circumstances or issues which they wish to express as having an impact on the concerns raised over performance.  The member of staff’s work and personal circumstances should be taken into account
• consider objectively any  information brought forward by the member of staff and the content of the discussions with him/her.  If such information is acceptable to meet the concerns over performance then a note to this effect should be included on file, and the Capability Procedure should be discontinued
• discuss whether support, further training or supervision would assist the member of staff achieve a satisfactory standard of performance
• establish with the member of staff how a satisfactory standard of performance can be achieved and agree a reasonable timescale
• assess whether any other policy should be used as in 1.14
• create a timetable for review taking account of input from the member of staff

The member of staff is entitled to be supported or represented by their trade union representative or work colleague during the informal stage of the Capability Procedure.

A note of the meeting will be made and a copy provided to the member of staff.  If the member of staff disagrees with the note of the meeting or with the line manager’s assessment of his/her performance, they may indicate this and this will be added to the note.

The Informal Meeting will normally be between the line manager and the member of staff as the intention is to resolve the matter at as low a level as possible.  However, the People Support team member and/or the member of staff’s trade union representative or a work colleague may attend the meeting, if desired by either party.

If the performance problem is resolved as a result of dealing with it under the Informal Capability Procedure, the line manager should confirm this to the member of staff in a face-to-face meeting and confirm that there is no intention to proceed with the Formal Capability Procedure.  A record stating there has been resolution of the issue should be kept on file and a copy provided to the member of staff for personal retention.

It is emphasised that the member of staff must receive a copy of any record made in respect of their performance.

The Formal Capability Procedure

Preparation

Prior to commencing the Formal Capability Procedure the line manager will review all relevant documents, examples of which may include:

• the job description
• HERA role profile
• written feedback
• any relevant records relating to job performance, including OSAR

Formal Capability Procedure – Action Plan

In all cases of where the Formal Capability Procedure proceeds, the document:

‘Formal Capability Procedure Action Plan’ must be completed.

Guidance for completing the ‘Formal Capability Procedure Action Plan’

The line manager will establish with the member of staff the reasonable standards required and make clear the shortfall between the actual performance and the required standards.

Copies of the documentation referred to in the paragraph headed ‘Preparation’, above, should be provided to the member of staff in support of the concerns expressed about their performance.

The member of staff, supported by their trade union representative or a work colleague, if they wish, will be entitled to challenge the line manager’s views on their work performance.

The line manager will formally enquire whether there are any mitigating circumstances, such as illness, disability, personal problems or work demands that could be impacting on the member of staff’s performance.  If so, reasonable support within the School/Directorate and University’s resources will be offered and provided, subject to the member of staff’s agreement.  Depending on the circumstances, it may be appropriate to refer to an existing relevant procedure (e.g. sickness absence) in place of the Capability Procedure.

If, after hearing the member of staff, the line manager still has cause for concern about their level of performance the  line manager will consider, along with the member of staff, whether the performance problem(s) can be resolved by a course of training or retraining (including internal staff development or external courses), or by any other type of support.  If this is the case, the line manager will initiate the appropriate action.

To clarify the required level of performance, the line manager and the member of staff will jointly engage in developing realistic objectives commensurate with the member of staff’s role.

A timescale for improvement should be developed with input from the member of staff; interim reviews should be scheduled by the line manager to track progress and a date for a final performance review meeting should also be set.  These timescales will depend upon the member of staff’s:

• experience
• the seriousness of the shortcomings

Normally the timescale will be at least 3 months in order that the degree of improvement can be properly assessed but will vary depending upon the complexity of the role and any mitigating factors that may apply.  If circumstances deem it appropriate, options for extending the timescale should be considered.

At the meeting to establish the action plan and at subsequent interim reviews the line manager will:

• seek the member of staff’s commitment to achieving the performance improvement  
• the member of staff will be encouraged to view the action plan and training provided as part of a support package and a positive means of assisting them
• discuss potential consequences if the objectives are not met within the timescales (e.g. job redesign, redeployment or, in the last resort, dismissal)

Written records of the initial action planning meeting, interim reviews and all other meetings under the Formal Capability Procedure will be made by the People Support team and a copy provided to the member of staff.  This should detail, as appropriate:

• the objectives agreed to be achieved (by the next interim meeting, if appropriate)
• feedback on progress against the objectives being reviewed
• confirmation of the dates of the next meetings and the final review date
• potential consequences if the objectives are not achieved

Review period and further meetings

Over the review period the line manager should meet with the member of staff at review meetings, and as required, in support of performance improvement and:

• confirm to the member of staff whether there has been satisfactory progress, or not; record in writing the progress achieved against the action plan and provide a copy to the member of staff
• where there has been partial progress against the action plan, acknowledge and record the details, confirm what monitoring will continue to apply and, if appropriate, any adjustment to the review timescales and final performance improvement review meeting
• where there has been full improvement, write to the member of staff to acknowledge the improvement and notify them that the Formal Capability Procedure is concluded
• where the member of staff disputes the  line manager’s final assessment of their progress the member of staff may
• provide a written statement that must be appended to the documentation
• have a further and final meeting, the member of staff being accompanied by their trade union representative or work colleague, if they wish, in an attempt find a resolution

Satisfactory improvement

If, after the final review within the Formal Capability Procedure Action Plan, satisfactory progress has been made and the member of staff is operating at an acceptable level the line manager should confirm this to the member of staff in writing.

Objective setting should thereafter resume the normal University practice via the Objective-setting and Review process

Insufficient improvement and consideration of job redesign or alternative position(s)

Where there has been insufficient improvement by completion of the Formal Capability Procedure Action Plan, the line manager will meet with the member of staff and convey this information.   The member of staff may be accompanied by their trade union representative or work colleague and the People Support team member will be in attendance.  At the meeting the parties will jointly consider whether:

• there can be some adjustment to existing duties i.e. altering or modifying the existing duties; alternative positions where they are available and the member of staff would be competent to fill.  Where alternative positions are being sought in these circumstances the Redeployment Portal should be referred to prior to considering the external advertising of a post
• priority should be given to making all reasonable efforts to seek to redesign the post, if possible, to allow the member of staff to utilise their strengths, or identify alternative jobs, if available, suitable to the member of staff’s capabilities.  Both options may have a consequential effect on grade and salary
• it should also be conveyed that dismissal may require to be considered as an option and this must be made clear to the member of staff

Where alternative position(s) are available the member of staff will receive the details, in writing, including the grade and proposed salary level.  The member of staff will be asked to make a decision about whether or not to accept within a specified timescale (no less than 14 days). 

If the member of staff does not accept the alternative duties or post, then dismissal may have to be considered and the letter, providing the details of the alternative position(s) must make this clear.

Consideration of dismissal

If no alternative positions are available that can accommodate the member of staff who has made insufficient improvement throughout the Formal Capability Procedure and Review period, or has rejected the alternative positions offered, the line manager may require to invoke the dismissal process below to consider dismissal of the member of staff as a last resort.

The Informal, Formal and Review documents that have been gathered throughout the Capability Procedure should be reviewed by the line manager and the People Support team to decide whether it is considered reasonable to invoke dismissal proceedings.

If the decision is to invoke dismissal proceedings, a paper outlining the reasons for this should be prepared by the line manager.  A copy of this document will be provided to the member of staff who may, if they wish, pass it to their trade union representative or work colleague.

The Informal, Formal and Review phases of the Capability procedure that has been conducted will normally serve as the investigation into the matter to establish the facts.

The People Support team will arrange a panel to hear the line manager’s representations and to hear from the member of staff, who are entitled to be accompanied by their trade union representative or a work colleague, and to consider whether or not the member of staff should be dismissed.

Prior to the meeting of the Panel, the member of staff will be provided with a letter outlining:

• the issues that have led to the dismissal procedure being invoked
• the date, time and place of the meeting to consider dismissal
• notification that the member of staff may be accompanied by their trade union representative or work colleague
• identification of the panel members
• Enclosed with the letter should be all the investigatory documents which are evidence in connection with the Capability Procedure and the reasons for invoking the dismissal procedure.   Copies of all the documents should be enclosed with letter, even if previously provided to the member of staff

The capability meeting to consider dismissal - panel members, attendees and process

For staff in categories: academic related; research; clerical; technical and manual, the panel members will comprise:

• Chair
• the Dean or Director, if not previously involved in managing the Capability Procedure or an appropriate Vice-Principal if the Dean or Director has been involved
• a senior member of the School/Discipline/Directorate who has some knowledge of the area in which the member of staff works
• a senior Member of the People Support team who has not been involved in managing the case
• a note taker who has not been involved in managing the case (this may be one of the panel members) 

For academic staff previously covered by Statute 16 i.e. Lecturer (Teaching & Research); Lecturer (Teaching & Scholarship; Senior Lecturer (Teaching & Research); Senior Lecturer (Teaching & Scholarship); Reader, Professor, and including the University Secretary and the Director of LLC, the panel members will comprise:

• Chair
• Vice-Principal as appropriate
• an academic member of staff, i.e. a Senior Lecturer (Teaching & Scholarship) or (Teaching and Research) as appropriate
• a senior member of the People Support team who has not been involved in managing the case.
• a note taker who has not been involved in managing the case (this may be one of the panel members) 

The management case recommending dismissal will be presented by the line manager who managed the Capability Procedure.      

The member of staff will have the right to state their case, respond to the points raised by management and provide any additional information.

The member of staff is entitled to be accompanied to the meeting by their trade union representative or a work colleague.

The panel may:

• interview witnesses suggested by either party or receive written statements from them (to be available to the panel 5 working days prior to the meeting)
• interview any other person they believe would clarify any matter they are considering and/or request further information
• adjourn to collect more evidence, if necessary

The member of staff and their trade union representative or work colleague should make every effort to attend the meeting.  If they are unable to attend, a date will be re-scheduled normally within 10 days of the original date.  If the member of staff continues to be unavailable to attend the meeting, the panel may decide to proceed with the meeting on the evidence available.

Any reasonable adjustments will be considered to accommodate the needs of a person with a disability: the member of staff, members of the panel or attendees.

The panel will decide whether the member of staff will be dismissed, or not.  If not, the panel may decide to recommend any action including development activities that they believe will address the situation.

Cases of dismissal

The onus is on the panel to show that incapability is the actual basis for their decision and justifying dismissal.  The panel must have reasonable grounds for that belief and have taken reasonable steps to inform its conclusions.

The members of the panel must satisfy themselves that other remedies short of dismissal have been considered.

If dismissal is decided by the panel, as a last resort, the Chair of the panel and the People Support team member will meet with the member of staff (and their trade union representative or work colleague, if wished) to explain the reason for the decision.

The Chair of the panel will write to the member of staff, communicating the outcome of the meeting as quickly as possible, and in any case within 7 days following the meetings and the letter will detail notice arrangements and the right of appeal.

Notice

Typically, contractual notice will apply in such cases.

Pay in lieu of notice can be made if mutually agreed.

Members of staff under notice will be allowed a reasonable amount of paid time off to seek employment, attend interviews or attend training, by agreement with their line manager.

Any outstanding annual leave accrued will be paid up to the date of leaving.

Right of appeal

The letter which communicates the decision to dismiss the member of staff must contain details of their right of appeal.

The appeal against the decision to dismiss should be submitted, in writing, to the University Secretary within 10 days of receipt by the member of staff of the written notice to dismiss them unless in exceptional circumstances such as serious illness or bereavement when a delay can be agreed.

On receipt of an appeal, the University Secretary or his/her delegated nominee will set up an Appeal Committee:

For staff in categories: academic related; research; clerical; technical and manual, the panel members will comprise:

Three senior University officials not previously involved in the case:

• a Chair
• a member of the University who has knowledge of the area of work or relevant expertise
• a senior member of the People Support team

For academic staff previously covered by Statute 16 i.e. Lecturer (Teaching & Research); Lecturer (Teaching & Scholarship;  Senior Lecturer (Teaching & Research); Senior Lecturer (Teaching & Scholarship); Reader, Professor, and including the University Secretary and the Director of LLC,  the panel members will comprise:

• an external solicitor (convener)
• a member of academic staff, appointed by Senate, and
• a further person, independent of the case) will be co-opted for specific expertise

This person will be agreed by both parties.

The member of staff has the right to be represented by a trade union representative or a work colleague throughout the appeal process.

The Appeal Committee will hear the appeal within 5 weeks or within the contractual notice period, if sooner.

Both the University representative (the Chair of Capability Panel which decided on dismissal) and the appellant will submit to the University Secretary a written statement of case and names of witnesses they have arranged to call no later than 5 working days prior to the date of the Appeal Hearing.

The statements of cases and names of witnesses from both University management and the appellant will be copied to the other party and both cases and sets of witnesses’ names will be passed to the members of the Appeal Committee prior to the Appeal Hearing.

The member of staff will have the opportunity to state their grounds of appeal.  Where the member of staff is unable to speak on their own behalf their trade union representative or work colleague will be entitled to speak on their behalf.

At the Appeal Hearing the appellant and/or representative will be invited to present their case first, followed by the University’s management representative(s).  The Appeal Committee members may ask questions of either or both parties and both parties will have the opportunity to cross-question the other. The Appeal Committee will decide, at its discretion, the order of proceedings regarding witnesses’ evidence and procedural matters.

The Appeal Committee will decide whether the decision to dismiss is upheld, or not.

The Appeal Committee’s decision will normally be communicated to the appellant within 7 working days of the Appeal Hearing.

The decision of the Appeal Committee is final and there is no further right of appeal.

Capability Procedure and Academic Probation or probationary-style review

The Capability Procedure (informal and formal procedures) will not be used for academic staff during their probationary period.  Probation will be subject to the arrangements in the Academic Probationary Procedure.

Arrangements in respect of the Principal

The principles of the University’s Capability Procedure will apply to the Principal.

If an allegation of incapability in performing his/her duties is made in respect of the Principal, the Chair of Court will appoint an Investigating Officer of his/her choice to undertake an investigation.  The Investigating Officer may be external to the University.

If the outcome of the investigation is considered by the Chair of Court to be minor in nature, he/she will be responsible for deciding upon and implementing the appropriate measures to address the matter.

If the Chair of Court considers the outcome of the investigation to be of a serious nature he/she will appoint two lay Court members to join him/her on a Capability panel to hear the case.

Where the decision of the Capability panel is to dismiss the Principal, the Chair of Court will have the authority to do so.

The Principal will have the right of appeal against dismissal.  A panel of three: one external solicitor (as Chair) and two lay Court members not previously involved in the case will hear the appeal, the outcome of which will be final.