CAPABILITY PROCEDURE (Managing Inadequate …...CAPABILITY PROCEDURE (Managing Inadequate...

Version 2 Policy Capability Procedure of 20

Date 25 November 2014 Next Review Date 19 November 2016

CAPABILITY PROCEDURE

(Managing Inadequate Performance)

Document type: Policy

Version: Two

Author (name and designation) Karen Elmer, HR Business Manager

Ratified by: Executive Directors

Date ratified: 19th November 2014

Name of responsible committee/individual Workforce Committee

Name of Executive Lead Mark Wilkinson

Master Document Controller? Sandra Drysdale

Date uploaded to intranet 28th November 2014

Review date: 19th November 2016

Equality Impact

Bolton NHS Foundation Trust strives to ensure equality of opportunity for all service users, local people and the workforce. As an employer and a provider of healthcare Bolton NHS FT aims to ensure that none are placed at a disadvantage as a result of its policies and procedures. This document has therefore been equality impact assessed to ensure fairness and consistency for all those covered by it regardless of their individuality. The results are shown in the Equality Impact Assessment (EIA).



Version Control Schedule

Version Type of Change Date Revisions from previous issues

V. 1 Full review October

2014

Full policy review in line with the policy review

schedule



CONTENTS

1.0 Purpose ........................................................................................................................................ 4

2.0 Scope ........................................................................................................................................... 4

3.0 The effects of inadequate performance ..................................................................................... 4

4.0 Principles ..................................................................................................................................... 5

5.0 Maintaining standards of performance ...................................................................................... 5

6.0 Factors to consider when dealing with inadequate performance .............................................. 5

Stages In The Procedure ......................................................................................................................... 6

7.0 Stage 1 – Informal Discussion / Counselling ............................................................................... 6

8.0 Stage 2 – First Notification Of Concern ....................................................................................... 7

9.0 Stage 3 – Final Notification Of Concern ...................................................................................... 7

10.0 Stage 4 – Termination Of Contract ............................................................................................. 7

11.0 Review Of The Procedure ........................................................................................................... 8

APPENDICES

Appendix 1 Capability Process Flow Chart

Appendix 2 Levels of authority to take formal action

Appendix 3 Sample Letter – Invite to a formal meeting

Appendix 4 Sample Letter - First Notification of Concern

Appendix 5 Sample Letter - Final Notification of Concern

Appendix 6 Sample Letter – Dismissal On The Grounds Of Capability

Appendix 7 Appendix 8

Equality Impact Assessment Tool Document Control Tracking



CAPABILITY PROCEDURE

(Managing Inadequate Performance)

1.0 PURPOSE

1.1 The aim of this procedure is to assist individuals to achieve their full potential and provide them with the appropriate skills, knowledge and ability to carry out the duties and responsibilities of their job to the required standard.

1.2 This procedure is designed to deal with those cases where an employee is lacking in some area of knowledge, skill or ability and is consequently unable to carry out the required duties to an acceptable standard.

1.3 The procedure should be used where there is a genuine lack of capability, rather than a failure on the part of the employee to perform to the standards which he/she is capable, for which the disciplinary policy and procedure may be appropriate.

1.4 The procedure seeks to:

Assist employees to improve their performance, wherever possible, when such deficiencies exist;

Provide a fair and consistent means of dealing with capability problems without employing the disciplinary procedure.

1.5 A genuine lack of capability may have been present for some time or may have come about more recently because of, for example, changing job content or personal factors affecting the individual’s performance.

2.0 SCOPE

2.1 The terms of this procedure are applicable to all employees of the Trust with the exception of medical and dental staff.

2.1.1 Concerns of capability involving medical and dental staff are dealt with outside of this policy under the ‘Trust’s Disciplinary Procedure for Hospital Medical & Dental Staff’.

2.1.2 It should be noted that in the case of doctors in training, placed under service level agreements, reference should be made to the ‘Lead Employer Arrangements’. Lead Employer Arrangements are identified outside of this policy.

2.2 This procedure does not cover issues of capability as a result of sickness. In such cases reference must be made to the attendance management policy.

3.0 THE EFFECTS OF INADEQUATE PERFORMANCE

3.1 Inadequate performance by individual staff for whatever reason will be severely damaging to the ward/department/team as a whole. As well as reducing standards of patient care, poor performance by individual staff will have a de-motivating effect on other employees. As a result staff turnover may increase, whilst overall standards and efficiency may drop. Not dealing with inadequate performance also reduces management credibility.



4.0 PRINCIPLES

4.1 The Trust will at all times endeavour to ensure that employees achieve and maintain a high standard of performance in their work. To this end it will ensure that standards are established, performance is monitored and employees are given appropriate training and support to meet the standards through regular staff appraisal procedures.

4.2 This procedure aims to assist Managers in managing performance by encouraging staff to perform to the required standard and providing the necessary support and assistance and should be read in conjunction with the policy on staff appraisal.

4.3 Managers, when applying the procedures, might for ease of reference purposes, find it helpful to refer to the managing poor performance flow chart (see appendix 1).

4.4 Where an individual has been subject to formal action under the Capability Procedure this is likely to contribute to a decision to defer incremental pay progression, but should be considered in light of the individual’s overall performance. Reference should be made to the Trust’s Pay Progression Policy.

5.0 MAINTAINING STANDARDS OF PERFORMANCE

5.1 All managers have a responsibility to ensure that staff are able to meet standards of performance. This includes:-

ensuring careful recruitment/selection

issuing staff with regularly updated job descriptions

ensuring staff receive regular appraisals and personal development plans

providing adequate training, help and encouragement

setting attainable standards and targets and ensuring staff awareness of these

providing positive feedback for jobs well done

providing constructive feedback on areas where improvements could be made.

5.2 Members of staff have the responsibility to engage with the appraisal process including taking advantage of personal development opportunities.

5.3 Employees are encouraged and have the right to request help and advice if they feel they are experiencing any problems performing their duties at any point in time.

6.0 FACTORS TO CONSIDER WHEN DEALING WITH INADEQUATE PERFORMANCE

6.1 At each stage of the procedure, the manager conducting the performance review must be satisfied that:

• The employee has received sufficient induction and training to carry out the job effectively and that this has been recorded on ESR.

• They have listened to the employee’s explanation and tried to ascertain whether there is an underlying problem that is affecting the employee’s performance e.g.:

Inability to cope with pace of change/new practice

Health – managers should consider referring a member of staff to Health Partners or counselling services for support

Interpersonal relationships within the department, or

Non work related problems



Adequate support (including moral support), supervision and guidance are being provided.

Staff have a clear understanding of their job and the standards expected of them and that standards are reasonably attainable.

Objectives are agreed with the employee that are clear, understandable, realistic and measurable.

The job is well designed with sufficient variety and the correct level and quantity of work.

6.2 Steps should be taken to ensure that inadequate performance is identified as soon as possible, through regular appraisal and monitoring of work, so that remedial action can be taken. Reference should also be made to the support document “Compassion in Caring”.

6.3 The following procedure should only be commenced when the measures described in section 3 have been implemented.

STAGES IN THE PROCEDURE

7.0 Stage 1 – Informal Discussion / Counselling

7.1 All staff have the benefit of discussion with their manager about their job role, performance, career aspirations, training and development and their ideas for service development in accordance with the Trust’s appraisal policy. Managers will regularly monitor the level of performance reached by employees. This monitoring will involve discussion with the employee. The manager will provide or arrange support which may include coaching, mentoring, additional training etc. as appropriate.

7.2 Where a shortfall in performance is observed, the immediate manager should discuss with the employee the employee’s capability and particular shortcomings (this is known as counselling). In particular, the manager should try to establish whether there is an underlying reason for the employee’s poor performance.

7.3 This initial counselling does not constitute formal action under the performance management procedure. Managers are encouraged to counsel staff, when necessary, in order to avoid recourse to formal action.

7.4 Managers are advised to summarise the main points of the counselling in writing to the employee as soon as possible after the meeting including an action plan with clear improvements, knowledge, skill, behaviour, timescales and methods of support. It is helpful to both parties to have a written record for reference as well as a clear indication of the areas of shortfall, the standards expected and any actions to be taken by either manager and/or employee to remedy the situation. The tone of the meeting and subsequent letter should reflect the informal and constructive nature of counselling appropriate to this stage.

7.5 The manager may wish to consider assigning a ‘mentor’ to the employee, to provide additional support in achieving the required standards.

7.6 Objectives should be agreed and a review date set. This will normally be three months.

7.7 It is essential that the member of staff is clear that they understand that management under this policy has commenced.



8.0 Stage 2 – First Notification of Concern

8.1 If the manager considers that there has been no improvement within the review period, then the employee should be seen formally by the manager authorised to give first written warnings (see Appendix 2). A sample letter to invite the member of staff to a formal meeting is contained within Appendix 3 of this policy.

8.2 If some improvement has been made but the standard has not yet been met, the review period may be extended. However, having taken into account the factors contained within section 6, the manager may decide to issue a first notification of concern (Sample letter is included within Appendix 3). These must only be issued by managers with the appropriate level of authority.

8.3 Objectives should be agreed upon. These must be specific, measurable, achievable, realistic and time bound. Objectives should be centred on those tasks/duties/projects required for the job role or personal objectives as necessary, with appropriate support offered.

8.4 A further review period should be set; this will normally be three months.

8.5 A Human Resources Advisor must be involved from this stage onwards.

8.6 The employee must be given the opportunity to be accompanied by a trade union/professional organisation representative, or a colleague from this stage onwards.

9.0 Stage 3 – Final Notification of Concern

9.1 Following the review period the employee should be seen again formally and should be given the opportunity to be represented by a trade union/professional organisation representative or a colleague.

9.2 At the next review, if performance has not improved, having taken into account the factors contained within section 6, the manager may decide to issue a final notification of concern (Sample letter is included within Appendix 4). These must only be issued by managers authorised to issue final written warnings. If some improvement has been made but the standard has not yet been met, the review period will/may be extended.

9.3 Objectives should be agreed upon. These must be specific, measurable, achievable, realistic and time bound. Objectives should be centred on those tasks/duties/projects required for the job role or personal objectives as necessary, with appropriate support offered.

9.4 A further review period should be set; this will normally be three months.

10.0 Stage 4 – Termination of Contract

10.1 Following the review period, the employee should be seen again formally.

10.2 Having considered the points contained within section 6, the manager may decide to terminate the member of staff’s contract of employment. Before such action is taken the manager must consider whether suitable alternative employment is available or if downgrading is appropriate.

10.3 Where it is felt an underlying health problem exists it may also be appropriate to explore other options such as an early retirement or application for ill health retirement in accordance with the provisions of the NHS pension scheme. (See the Trust’s policy on Managing Attendance). It should be noted that approaches of this nature will be made on an exceptional basis. Termination of contract may only be carried out by managers authorised to dismiss staff as prescribed within Appendix 2.



10.4 Any employee dismissed on the grounds of capability will have the right of appeal to a panel as prescribed within the Disciplinary Procedure.

11.0 Review of the Procedure

11.1 Revision of this procedure may be necessary from time to time as a result of changes in the law and in the light of experience when applying the procedure. The Trust will consult fully with management and Staff Side/Trade Union representatives before any amendments are made. The effectiveness of this policy will be audited on an ad hoc basis by the policy author.



Notes to be read in conjunction with the procedural stages.

Note 1

Suitable Alternative Employment and Action Short of Dismissal

At any point throughout the above procedure, the manager and the employee may agree that the

duties and responsibilities of the post do not match the employee’s skills and capabilities. In such

instances every attempt will be made to find suitable alternative employment. This may include

posts of a lower grade, with the employee’s agreement. Protection of pay and conditions of service

is not appropriate in these circumstances.

In cases where the manager is considering dismissal, they may wish to offer downgrading,

alternative employment or loss of seniority to the employee as an alternative to dismissal. In such

cases the employee, together with the representative will have discussed the situation and accept

this as an alternative to dismissal. Again, protection of pay and terms and conditions of service is

not appropriate in these circumstances.

Note 2

Reinstatement of Procedures where Previously Discontinued

If performance has met the required standards and been maintained through one review period,

then the procedures will be discontinued. It is expected thereafter the employee will continue to

maintain a satisfactory level of performance. Regular monitoring will continue through the normal

appraisal process, as with any other employee. If performance falls below the required standard

again the Trust retains the discretion to direct the employee towards a stage in the procedures as

considered appropriate. In most cases this will mean re-entry to the next stage to where procedures

were previously discontinued i.e. procedures discontinued after first notification of concern re-entry

will be made at final notification of concern. Factors such as time scale since procedures were

discontinued and nature of shortcomings will be taken into consideration by the manager authorised

to give final written warnings when arriving at his/her decision.

This will not apply if performance has been satisfactory for over 12 months.

Note 3

Maternity Leave

Where the employee commences maternity leave whilst subject to the Capability Procedure this

should be held in abeyance for the duration of the maternity leave. The manager should explain the

position to the employee and advise her that upon her return to work the situation will be reviewed

and consideration will be given to reinvoking the procedure depending on the circumstances.

Where the procedure is reinvoked upon return to work it should recommence at the same stage as

prior to maternity leave.



Sickness Absence

Extended or frequent absence on sick leave could make the monitoring and assessing of the

employee’s performance difficult at any stage of the procedure. If the length or frequency of

absences are such that the employee has not had a reasonable opportunity to improve their

performance, the procedure should be held in abeyance pending a return to work. The manager

should advise the employee of the decision to adjourn the Capability Procedure. Upon return to

work the full circumstances should be considered with regard to:

- The nature of the illness - The current state of health - The length of the absence

Where the decision is taken to re-invoke the procedure upon return to work, they should

recommence at the same stage as prior to the absence.

Note 4

Pay deferment

It is the aim of the Trust to promote good individual performance. When a member of staff is subject

to formal performance management under this Policy this is likely to contribute to a decision to

defer incremental pay progression, but should be considered in light of the individual’s overall

performance. Please refer to the Pay Progression Policy.

Note 5

There is a right of appeal at all stages of the formal procedure. An employee wishing to appeal

should state their intention, in writing, within 7 working days from the date of the outcome letter.

Appendix 1 – Capability Procedure Flow Chart



CAPABILITY PROCEDURE FLOW CHART

4.1

5.1

4.1

5.1

4.1

5.1

4.1

5.1

No

No

No

No

Yes

Yes

Yes

No No

Yes

Yes

Yes

Yes

Yes

Poor performance identified by manager

Discuss with employee nature of shortcomings (recorded counselling)

Ascertain possible reason for poor performance

Conduct Health

Capability

Attendance Management Disciplinary Procedure

Discuss with employee – can the problem be solved by training, etc

Alcohol & Drugs Policy

Review performance regularly

Tell the employee what needs to be improved and the consequences of not doing so (set

objectives). Review after 2-6 months.

Has performance improved to satisfactory level?

Issue first notification of concern. Continue to monitor & support. Review again after 2-6

months

Formal procedure to commence


Issue final notification of concern. Continue to monitor & support. Review again after 2-6

months


Consideration of all options. Are actions such as downgrading, redeployment or early retirement

viable?

Dismiss

Appendix 2 – Levels Of Authority To Take Formal Action



LEVELS OF AUTHORITY TO TAKE FORMAL ACTION

Management levels identified below are authorised to take the following actions in connection with the Capability Policy:

First Notification Of Concern The immediate departmental/ward manager Final Notification Of Concern Next level of management. Dismissal, Downgrading, Transfer Deputy Director of Operations or Head of Division. This responsibility can be delegated, where appropriate, to a Clinical Lead, Professional Lead, General Manager or equivalent role within the Trust. Appeals Member of management immediately senior to the manager, or at the same level to the manager, who took the original decision. Appeals against dismissal will be heard by at least two directors of the Trust.

Appendix 3 - Sample Letter – Invite to a formal meeting



Minerva Road Farnworth

Bolton BL4 0JR

Tel: 01204 390390

www.boltonft.nhs.uk STRICTLY PRIVATE AND CONFIDENTIAL ADDRESSEE ONLY (ADDRESS) (ADDRESS) (ADDRESS) (ADDRESS) (ADDRESS) (DATE) Dear (Name), You will recall that we met informally on the (Date) to discuss your performance and we agreed the

following objectives:

• …………………………………………………………………..…………………………………………………………………………………..…..….. • …………………………………………………………………..…………………………………………………………………………………..…..….. • …………………………………………………………………..…………………………………………………………………………………..…..….. • …………………………………………………………………..…………………………………………………………………………………..…..….. It was agreed that your progress regarding the above would be monitored over a (X) month period (i.e.

(Start Date) to (End Date) and I now wish to meet with you formally to discuss your capabilities as (Job

Title).

The meeting has been arranged for (Date) at (Time) in (Meeting Room). I shall be accompanied at the

meeting by (HR Representative Name), (Job Title).

You may, if you wish, be accompanied by a trade union/professional organisation representative or a

colleague. At the meeting I shall wish to discuss your work performance and any training and/or support

needs that you have in fulfilling your role. However I must advise you that the meeting may result in

formal action being taken.

Please confirm your receipt of this letter and your attendance at the meeting.

Yours sincerely,

Manager

cc HR Representative Personal File

Appendix 4 – Sample Letter – First Notification of Concern




Bolton BL4 0JR

Tel: 01204 390390

www.boltonft.nhs.uk STRICTLY PRIVATE AND CONFIDENTIAL ADDRESSEE ONLY (ADDRESS) (ADDRESS) (ADDRESS) (DATE) Dear (Name), Re. First Notification of Concern I write to confirm the outcome of the meeting held on (Date), at which you were represented by (Name),

(Professional Organisation).

The meeting had been arranged to discuss your capabilities as (Job Title). A number of objectives had

been set for you over the past (x) months as follows:

• …………………………………………………………………..…………………………………………………………………………………..…..….. • …………………………………………………………………..…………………………………………………………………………………..…..….. I feel that, despite receiving adequate training and support, you have failed to meet these objectives. In

view of the fact that you have not demonstrated a significant improvement over the review period, I am

writing to you to formally express my concern.

As discussed, I shall ensure that you receive appropriate support and training as follows:

• …………………………………………………………………..…………………………………………………………………………………..…..….. • …………………………………………………………………..…………………………………………………………………………………..…..….. As agreed I shall monitor your progress over the next (x) months when we shall meet again formally to

review your progress. If there has not been any significant improvement in this period further formal

action will be taken in line with the Trust’s Capability Procedure.

If, in the meantime, you experience any difficulties or need any help or advice, please do not hesitate to

contact me.

Yours sincerely,

Manager

cc HR Representative Personal File

Appendix 5 – Sample Letter – Final Notification of Concern




Bolton BL4 0JR

Tel: 01204 390390

www.boltonft.nhs.uk STRICTLY PRIVATE AND CONFIDENTIAL ADDRESSEE ONLY (ADDRESS) (ADDRESS) (ADDRESS) (DATE) Dear (Name), Re. Final Notification of Concern I write to confirm the outcome of the meeting held on (Date), at which you were represented by (Name),


We discussed your capabilities as (Job Title). A number of objectives had been set for you over the past

(x) months as follows:

• …………………………………………………………………..…………………………………………………………………………………..…..….. • …………………………………………………………………..…………………………………………………………………………………..…..….. • …………………………………………………………………..…………………………………………………………………………………..…..….. I feel that, despite receiving adequate training and support, you have failed to meet these objectives. In

view of the fact that you have not demonstrated a significant improvement over the review period, I am

writing to you to formally express my concern.

As discussed, I shall ensure that you receive appropriate support and training as follows:

• …………………………………………………………………..…………………………………………………………………………………..…..….. • …………………………………………………………………..…………………………………………………………………………………..…..….. • …………………………………………………………………..…………………………………………………………………………………..…..….. As agreed I shall monitor your progress over the next (x) months when we shall meet again formally to

review your progress. This is the second time that I have had to formally express my concern about your

performance and if there is still no improvement over the review period, I shall have to seriously consider

your capability to fulfil your duties as (Job Title). Therefore, if there is no improvement further action will

result, which may include:

- Alternative employment - Downgrading; or - Termination of contract

Appendix 5 – Sample Letter – Final Notification of Concern



If, during this review period, you require any help or support please contact me.

Yours sincerely,

Manager

cc HR Representative Personal file

Appendix 6 – Sample Letter – Dismissal on the grounds of capability




Bolton BL4 0JR

Tel: 01204 390390

www.boltonft.nhs.uk STRICTLY PRIVATE AND CONFIDENTIAL ADDRESSEE ONLY (ADDRESS) (ADDRESS) (ADDRESS) (DATE) Dear (Name), Re. Dismissal on the grounds of capability I write to confirm the outcome of the meeting held on (Date), at which you were represented by (Name),


The meeting had been arranged to discuss your capabilities as (Job title). A number of objectives had

been set for you over the past (x) months as follows:

…………………………………………………………………..…………………………………………………………………………………..….

…………………………………………………………………..…………………………………………………………………………………..….

…………………………………………………………………..…………………………………………………………………………………..….

We discussed your performance in depth and I am satisfied that you have been given ample opportunity

to improve your performance to the required standard. I am also satisfied that you have been given

adequate training and support to enable you to meet the requirements of the post.

You have been counselled on (Date) regarding your performance and you were seen formally on (Date)

and (Date). At the last meeting it was made quite clear that if there was no improvement in your

performance your contract may be terminated.

We discussed alternative employment and you were not willing to consider any of the opportunities

currently available/there are no suitable vacancies at present.

Having listened to all the facts and having given you the opportunity to give me any further information,

the decision has been taken to terminate your contract of employment. You are, therefore, dismissed

from your post as (Job title) with Bolton NHS Foundation Trust with immediate effect on the grounds of

your incapability to undertake the duties and responsibilities of your post.

You will receive (x) weeks pay in lieu of notice plus any outstanding annual leave due to you.

Appendix 6 – Sample Letter – Dismissal on the grounds of capability



I would advise you that you have the right of appeal against this decision. Should you wish to exercise this

right, you should write to the Head of Human Resources, within twenty one days of receipt of this letter.

A copy of this letter has been sent to your trade union representative.

Yours sincerely,

Manager

cc HR Representative Personal file

NB. - must be signed by a manager with the power of dismissal - letter must be agreed with the Divisional HR Business Manager

Appendix 7 – Equality Impact Assessment Tool



Equality Impact Assessment Tool

To be completed and attached to any procedural document when submitted to the appropriate committee for consideration and approval.

Yes/No Comments

1. Does the document/guidance affect one group less or more favourably than another on the basis of:

Race No

Ethnic origins (including gypsies and travellers) No

Nationality No

Gender (including gender reassignment) No

Culture No

Religion or belief No

Sexual orientation No

Age No

Disability - learning disabilities, physical disability, sensory impairment and mental health problems

No

2. Is there any evidence that some groups are affected differently?

No

3. If you have identified potential discrimination, are there any valid exceptions, legal and/or justifiable?

4. Is the impact of the document/guidance likely to be negative?

No

5. If so, can the impact be avoided?

6. What alternative is there to achieving the document/guidance without the impact?

7. Can we reduce the impact by taking different action?

If you have identified a potential discriminatory impact of this procedural document, please refer it to your divisional E and D lead together with any suggestions as to the action required to avoid/reduce this impact.

Appendix 8 – Document Control Tracking



Document Control Tracking

To be completed and attached to documents submitted for consideration and approval. After ratification

to be included within appendices

Document Title: Capability Procedure

Author: Karen Elmer, HR Business Manager

New/revised: Revised Policy

Summary:

The policy has been reviewed as part of the usual policy review process .

The opportunity has been taken to consider the practice undertaken by other organisations and to

ensure current practise remains appropriate.

The policy will replace a number of existing policies that are currently in application across the Trust:

Bolton NHS FT – Capability Procedure (Managing Inadequate Performance)

Bolton PCT- Capability Policy

Pennine Acute Hospitals NHS Trust- Capability Policy and Procedure

Heywood, Middleton and Rochdale NHS - Capability Procedure Policy

Salford Royal NHS FT – Performance Management Policy and Procedure

Staff/Stakeholders Consulted: Staff side, JNCC members, Workforce

Section below to be completed by ratifying committee

Ratifying Committee:

Executive Board

Date presented for Ratification:

19th November 2014

Outcome:

Ratified Y Ratified subject to minor

amendments

Not ratified

Comments:

Policy review in two years.

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