Formal resolution

If informal action has not succeeded in addressing and resolving the underperformance or if the problem is more serious and a more structured, formal approach is needed, consideration will be given to whether there are grounds for undertaking formal action under the Capability Policy (see the Procedure and flowcharts). The assessment required will depend on the circumstances but may involve:

Reviewing the employee's personnel file.
Gathering relevant documents.
Monitoring the employee's work.
Interviewing the employee and/or other individuals confidentially regarding the employee's work, as appropriate.

Where there are grounds for undertaking formal action of the underperformance concerns, a staged approach will be adopted as detailed in the Capability Policy. The Capability Policy will seek to establish:

The performance gap.
The causes.
The impact the poor performance is having.
The actions to be taken.
Who has responsibility for the actions.
The performance standards that are required.
The support to be given to the employee.
A timetable to review the agreed objectives.

The focus of the formal procedure will be to give an employee support to help them to achieve the expected performance standards.

Where a review period is set, regular review meetings should be held with the employee. A Performance Improvement Plan should be used to record action taken and progress during the review period. At the end of the review period, the employee's progress will be reviewed to assess if any further action and /or support is required. If the employee's performance has not improved to an acceptable standard, consideration will be given to the next stage of the formal Capability procedure.

At any stage of the formal procedure a manager may consider a range of other options including:

Reverting to an informal approach.
Taking action under an alternative University procedure.
Providing appropriate training or development opportunities.
Extending a review period.
By agreement investigating the possibility of alternative available roles.

This list is not exhaustive.

Right to be accompanied and attendance

All employees have the right to be accompanied at formal capability meetings by a trade union representative or work colleague.

Employees are responsible for co-operating with their manager in improving their performance and attending capability meetings. Where the employee is unable to attend a capability meeting on the date scheduled they should inform their manager at the earliest opportunity. In the first instance the meeting will usually be rearranged for an alternative time. Where an employee fails to attend a rearranged meeting without good cause, a decision may be made to go ahead with the meeting in the employee's absence, and a decision will be reached based on the evidence available. The employee will be informed where this is the case.

If an employee's companion or trade union representative cannot attend on a proposed date, the employee can suggest another date so long as it is reasonable and is not more than five working days after the date originally proposed. Whilst every effort will be made to find a time that is suitable for all parties, if the companion is not available at the rearranged time the University can insist that the employee choose a different companion, or attend the meeting unaccompanied.

Where an employee is unable to attend a capability meeting due to ill health, consideration will be given to making reasonable adjustments, such as holding the meeting at a different location or allowing the employee to make written representations.

Witnesses

The employee and the presenting manager may call witnesses under the formal stages of the Capability procedure. In accordance with the ACAS Code an employee should be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses. They should also be given an opportunity to raise points about any information provided by witnesses. The employee is also responsible for making arrangements for their witnesses to attend. They must provide the names of any witnesses they wish to call to the manager conducting the meeting at least three working days prior to the meeting, with a written explanation of the relevance of the witness evidence where requested. Employees will be allowed appropriate time off where they are asked to attend a capability meeting as a witness.

Authority to act

Meetings under stages one and two of the formal procedure are conducted by the employee's manager or a more senior manager, as appropriate. Meetings under stage three of the formal procedure are conducted by the Head of Institution or nominated deputy. The Head of Institution may select a nominee to act on their behalf. The nominee will be agreed in conjunction with HR and will be a senior colleague.

There may be exceptional circumstances where it would not be appropriate for the Head of Institution to act in a case e.g. the Head of Institution is required to act as a witness or is compromised in some substantial way. In such circumstances the case will be referred to the Director of HR who may refer the case to an alternative Head of Institution or senior Officer of the University.

Formal meetings

Formal meeting stages one and two

At the meeting the manager (who will be accompanied by a member of the HR team) will outline the performance issues that have led to the meeting and will review the circumstances of the case and the actions taken to date. The employee will be given the opportunity to state their case and raise any factors they wish to have considered. The manager should identify if there are measures, such as additional training or supervision, which may help improve performance and where appropriate, discuss targets for improvement and a timescale of review. Please see the Capability Policy for further information on stages one and two.

If as a result of the meeting and the evidence presented, the employee's performance is considered to be satisfactory and no further action is required, this will be confirmed to the employee in writing within five working days.

If as a result of the meeting and the evidence presented, the employee's performance is considered to be unsatisfactory the manager will write to the employee issuing an Improvement Notice. The Improvement Notice will state the improvement in performance required, targets for improvement, the timescale for improvement, any support to be provided and the consequence of not meeting the performance targets within the review period. It will also set out the employee's right of appeal.

Please see below for further guidance on conducting formal meetings and section 6.2 of the Capability Toolkit.

Formal meeting stage three

If the employee's performance does not improve as specified in the Improvement Notice issued under the formal stage one or formal stage two meeting above, or where serious performance issues arise (see the Procedure), the employee shall be invited to a formal stage three meeting.

The meeting will be conducted by the Head of Institution or nominated deputy who will be accompanied by a member of the HR Division.

a) Preparation

The employee will be notified in writing and will be given at least five working days notice of the meeting.

The invite letter will:

Explain the purpose of the meeting.
Provide details of the underperformance concerns and the reasons for those concerns.
Explain that one possible consequence of the meeting may be the termination of employment.
Specify the manager/head of institution who will conduct the meeting and identify others any others who will be attending.
Invite the employee to make any written submissions to that person and/or bring forward witnesses.
Advise the employee of their right to be accompanied.

Where there is additional information to provide to the employee this should be sent with the letter and may include:

A summary of relevant information gathered as part of any review/assessment.
A copy of relevant documents which will be used at the capability meeting.
A copy of relevant witness statements (except where a witness' identity is to be kept confidential, in which case the employee will be given as much information as possible whilst maintaining confidentiality).

Prior to a formal capability meeting the employee must inform the manager conducting the meeting of:

The names of any nominated witnesses they wish to call.
Written submissions they wish to have considered.
Documentary evidence they intend to rely on at the meeting, and
An explanation of the relevance of both their own and any witness evidence.

The employee should provide this information as soon as reasonably practicable and at least three days before the formal meeting.

b) Introductions

At the start of the meeting the person conducting the meeting will introduce those present and explain the purpose of the meeting and the process that will be undertaken, encouraging those present to speak openly. If a witness is called by either the manager or the employee, they will be invited to attend at an appropriate time.

c) Presentation of the case

The presenting manager (normally the manager who has dealt with the case up to this point) will present the details of the underperformance and any steps taken to address these. If appropriate they may present the findings of any investigation, may call witnesses, and question them and the employee in relation to the alleged underperformance. The presenting manager should:

Set out the required standards which it is considered the employee may have failed to meet.
State clearly the areas of concern.
Outline the case by going through the evidence that has been gathered.
Set out any steps which have already been taken to address performance shortfalls.
Call witnesses if appropriate.
Answer questions that relate to the case.

d) The employee's response

The employee or their representative (in accordance with Roles and responsibilities) should:

State their case and respond to any performance issues raised.
Ask questions and present any evidence in support of their case.
Respond to any information given by a witness.
Call witnesses if appropriate.

e) Consideration by the manager conducting the meeting

The Head of Institution or nominated deputy conducting and hearing the case should:

Go through any relevant evidence gathered including, where relevant, the findings of any investigation/review, and the questioning of any witnesses or parties in relation to the alleged performance issues.
Use questions to clarify the issues and to check that what has been said is understood.
Encourage the employee to speak freely to establish all the facts.
Establish if there is any explanation for the alleged performance shortfalls.
If dismissal is a possibility, establish whether there is any likelihood of a significant improvement being made within a reasonable time and whether there is any practical alternative to dismissal, such as redeployment.
Summarise the main points of the discussion after questioning is completed.
Ensure all evidence and points for all parties have been put forward, including if there are any special circumstances to be taken into account.
Ask the employee if they have anything further to say or to be taken into account.

The person conducting the meeting will be able to question all those involved. They will consider all representations before deciding if the concerns are well founded and if so what outcome, including and up to dismissal is appropriate.

f) Adjournment

If new facts have emerged or there is any dispute over facts that haven't been properly investigated, it may be necessary to adjourn the meeting in order to investigate them and reconvene the meeting at a later date. Any new evidence should be shared with both parties prior to reconvening the meeting. Requests for an adjournment by either side should be made to the manager leading the meeting.

g) Meeting Outcome

The employee will be informed of the decision in writing within five working days of the meeting.

If as a result of the meeting and the evidence presented, the employee's performance is considered to be unsatisfactory, further appropriate action will be considered, as detailed in the procedure. Further advice should be sought from the HR Division particularly if dismissal on grounds of incapability is under consideration.

The correspondence shall also notify the employee of their right to appeal against any sanction. In the event that the decision is taken to dismiss the employee, the correspondence will include the reasons for dismissal and the date that their employment will terminate, together with details of any notice arrangements and right of appeal. Dismissal will always be a last resort after consideration of all other options.

This guidance should be read in conjunction with the Capability Policy. Please contact the HR Division if there are any further queries.

Improvement Notices

If as a result of a formal stage one or two meeting the employee's performance is found to be unsatisfactory the manager will write to the employee, issuing an Improvement Notice. The Improvement Notice will state the improvement in performance required, targets for improvement, the timescale for improvement (‘the review period’), any support to be provided and the consequence of not meeting the performance targets within the review period. It will also set out the employee's right of appeal.

The manager may develop a Performance Improvement Plan, with input from the employee, to help the employee to attain the required level of performance. A template is provided in the toolkit section.

The manager will monitor the employee's performance during the review period and will hold regular review meetings. A Performance Improvement Plan should be used to record action taken and progress during the review period. On completion of the review period the manager will write to the employee to inform them of the outcome.

An Improvement Notice will remain active for a specified period. This will usually be six months for a First Improvement Notice and one year for a Final Improvement Notice, after which time it will remain on file for reference purposes but will be disregarded when making a decision on future capability proceedings.

Other options to consider under the capability procedure

Redeployment

Where underperformance continues despite support and assistance, alternative employment may be considered. However, an employee cannot be redeployed to another role without their express agreement and cannot be forced to move. Redeployment would have to be a decision agreed between employer and employee. Employees who wish to be considered for redeployment will be offered advice and assistance in preparing job applications, updating CVs, writing cover letters and interview preparation over a reasonable period of time. If the employee has moved from another position in the University, consideration may be given to transferring the employee back to their old position if appropriate, subject to agreement with all parties and the position remaining vacant.

Internal Promotion

Where an employee is promoted or appointed to a higher graded post, the consequences of failing to meet the necessary standards of performance for the new post should be clearly and fully explained to the employee at the time the promotion is offered. In most cases, the employee will be promoted on the basis of a probationary period/appointment support period in the new job.

Suspension

If the underperformance or capability issue is considered sufficiently serious, suspension may be considered. Suspension is not a penalty and should be considered a neutral act which does not imply wrongdoing on the part of the employee and is therefore on full pay. It will be unusual for suspension to be appropriate in managing capability concerns, except where these may amount to serious incapability or gross negligence. Suspension may for example be considered if a case involves a serious neglect of duty, to provide an opportunity to fully investigate, where there are concerns the employee may interfere with the investigation/review, or if the employee is considered to be a risk to themselves or others. Any decision to suspend will be taken by the Head of Institution in consultation with the relevant HR Business Manager and confirmed in writing within five working days. The letter will provide details of the circumstances of the suspension. A manager will be appointed to keep in contact with the employee during the period of suspension and to regularly review the arrangements and reasons for continued suspension. The employee will be offered sources of support and advice.

Timescales

Timescales at all stages of the formal and informal Capability Procedure should be appropriate and reasonable.

Informal

Once an underperformance issue is identified, it should be addressed at the earliest opportunity, ideally within a few days.

When setting timescales for performance improvement and review, agreement should be sought at the outset with the employee that the timescales set are reasonable. Timescales for improvement will vary depending upon the nature of the role and the issues involved. When setting review timescales, the following factors should be taken into consideration:

The nature of the work and the underperformance.
How often the task or type of work under review arises eg if it involves examination administration this may not reoccur for another academic term or year.
Ensuring reasonable time for the individual to undertake training, absorb, practice and apply it.
Urgency of the task or area of work under review.
Consequences of further underperformance.
In all circumstances the period of time to improve must be reasonable.

Formal

The formal stages of the Capability procedure specify the following timeframes:

The employee should receive at least five working days written notice of a formal capability meeting, allowing the employee reasonable time to prepare for the meeting.
At least three working days prior to a formal capability meeting the employee must inform the manager conducting the meeting of the names of any nominated witnesses they wish to call, any written submissions they wish to have considered, any documentary evidence they intend to rely on at the meeting and, if requested, an explanation of the relevance of both their own and any witness evidence. If the employee is concerned about meeting this timescale they should discuss this with their HR School team to explore whether alternative arrangements can be agreed.
The employee will be informed in writing of the outcome of a formal capability meeting and the reasons for it, within five working days.
Any decision to suspend will be taken by the Head of Institution in consultation with the relevant HR Business Manager and confirmed in writing within five working days.
Under the formal stages of the procedure, guidelines are provided on appropriate periods during which an Improvement Notice will remain active. This will usually be six months for a First or Final Improvement Notice and one year for a Final Improvement Notice. Institutions are advised to discuss review periods with the relevant HR School teams to ensure they are consistent and proportionate.