Identifying underperformance
It is important to identify the correct procedure for managing performance issues as early as possible so that appropriate support can be offered to the employee.
Whether performance concerns should be managed under the disciplinary or capability procedure will depend on the nature of the performance issues. This can normally be determined by holding an initial discussion with the employee and gathering further information. Generally a manager will know whether an individual simply does not have the skill, knowledge or ability to carry out their role and therefore needs assistance, training or support to improve, as opposed to where an individual is perfectly capable of doing their job (i.e. they know how to do their job and have the skills to carry it out) but they deliberately do something wrong or are careless or idle.
Advice should be sought from the HR Division if managers are unsure which procedure is appropriate or believe they may need to follow a different procedure. If, in the course of investigating an employee's underperformance it becomes clear that it would be more appropriate to continue under a different procedure, this should be discussed with the employee and confirmed in writing.
Disciplinary
In deciding whether the Capability or the relevant Disciplinary Policy will apply, it is important to recognise the difference between a:
- Deliberate failure on the part of the employee to perform to the standards of which they are capable (e.g. carelessness, negligence or lack of effort which is under the employee's control), in which case the relevant Disciplinary procedure will be appropriate; and a
- Case of incapability, where an employee is lacking in knowledge, skill or ability, which is outside of the employee's direct control, and so is unable to carry out their duties to the standard required, in which case the Capability Policy will apply to support and improve performance.
Ill health
In deciding whether the Capability or the Sickness Absence Policy will apply, consideration should be given to how the ill health is affecting the employee's ability to carry out their job to the required standard. If the issue is primarily that the individual has unacceptable levels of absence from work, then the Sickness Absence Policy will apply. If the individual is largely attending work but their performance of their work is affected due to ill health, the Capability Policy will apply. For advice and guidance on managing cases related to ill health, please contact the relevant HR School team and the Occupational Health Service.
Disability
Consideration must be given to whether underperformance may be caused or exacerbated by a disability under the Equality Act. Disability is defined under the Act as a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on an individual's ability to do normal daily activities. Where this is the case, care should be taken to avoid discrimination arising from the disability. In practice, this means that any action taken in response to the particular performance concerns will need to be proportionate and appropriate in relation to the performance objectives set. Consideration must also be given to whether there are reasonable adjustments which could be made to the employee's working arrangements, including changing duties or providing additional training, as well as making adjustments to the application of the Capability Policy itself where appropriate. Details of further information are provided below: