Capability (Performance) Procedure - Guidance for Managers

1. Introduction 

The capability procedure is designed to provide a constructive framework within which to help members of staff who are failing to achieve a satisfactory level of performance at work to fulfil the duties of their role to the required standard.  

The purpose of this guidance is to assist managers to implement the Capability Procedure (Performance) : Performance Framework for staff who have completed their Initial Service Review Period, Ordinance 10 - section 5, it does not form part of the procedure.  It follows that this guidance should be read in conjunction with the Capability Procedure (Ordinance 10, section 5) and the Operating Principles (Ordinance 10, section 1).  

2. Manager’s Responsibilities 

It is the Manager’s responsibility: 

• To ensure that members of staff are clear about the standards of performance expected of them. 

• To allow a fair and reasonable opportunity to achieve these standards and arrange relevant and reasonable support or training where appropriate. 

• To deal with issues of performance as they arise and where appropriate seek to resolve such matters informally with early action. 

• To deal with issues of performance consistently and using the procedure set out in Ordinance 10, section 5. 

3. Support and Guidance 

HR teams will provide guidance and support to all parties involved in the operation of the procedures prescribed by Ordinance 10, section 5 and Ordinance 10, section 1, point 1.6. 

Trade Unions may advise their members on all aspects of this procedure, and may represent/accompany individuals at meetings (see Operating Principles: Ordinance 10, section 1, point 1.12). 

4. Early Action (Ordinance 10, section 5, point 5.2) 

If a Manager considers that an employee is not performing to the required standard it is in the Manager’s interests to address the concern early. The aim is to resolve the concern before positions harden or patterns of working become entrenched and therefore harder to change and/or start to affect other members of the employee’s team or any other colleagues. Managers are strongly encouraged to address any issues of poor performance early with the aim of resolving them without recourse to the formal procedure. 

Any informal meetings or discussions (whether as part of regular 1:1 meetings or arranged specifically to address poor performance) should highlight: 

• The nature of the concerns. 

• The expected standards of performance. 

• Any necessary actions required to be carried out by the employee to aid improvement. 

• Any relevant support or training available. 

• Any timescales for improvement and review dates. 

• The potential consequences of not achieving the required improvements in performance. 

At an informal meeting managers should: 

• Communicate the concerns about the employee’s performance clearly. It may be helpful to use observations and examples to explain the “gap” between existing levels of performance and the required standard(s) and/or to refer to the job description to help explain where performance is falling short. 

• Explore any change in performance standards with the employee. 

• Consider the employees views and/or any mitigating circumstances that may be affecting their performance (including, for example, ill heath, disability or other personal circumstances). 

• Consider, where appropriate, providing the employee with access to reasonable support or training (including, for example, additional equipment/facilities or changes to workload or re-allocation of tasks) to assist them in meeting the required standards. 

• Keep a note of the meeting, and of the required outcomes, targets, review date(s), etc. and copy it to the employee after the meeting (this could be via email). 

Where as a result of early action performance has improved sufficiently, managers should meet again with the employee to confirm the positive outcome and should confirm this in writing (this could be via email). It will also be necessary for the Manager to ensure that standards of performance are sustained through appropriate review. 

Setting Performance Goals 

There is no one method that is better than another to set a performance goal. The purpose of setting a goal or target in the context of performance is to identify the shortfall in performance and set a realistic time to achieve the improvements. This is not always an easy task and HR can assist managers with setting goals.  Sometimes the goals set will be narrow and focussed, at other times they will be broader. Whatever the goals are it is important that both the Manager and the employee understand what is to be achieved and by when. Timescales will vary according to the goal that has been set. It may be, for example, that the time period for improvement cannot begin to run until the employee has completed a particular piece of training, or a cycle of work; it may be appropriate in some circumstances to expect the goal to be achieved in two weeks or over a three month period. Performance goals are set not only so that the employee can understand what it is that they are required to do but also to assist the manager to identify and quantify the concern and assess the sufficiency of any improvement. 

5. Considering Taking Formal Action (Ordinance 10, section 5, point 5.3) 

Consideration of the position before any formal action is taken it is key to ensuring that appropriate outcomes are established. It may transpire that formal action is not appropriate under the circumstances – it is always better for everyone that this is decided before any formal action is taken rather than in the course of a formal hearing. 

Therefore before taking formal action the Manager should take stock and in discussion with HR consider the following: 

• Has the employee identified that their performance been affected by ill health or a disability? If so, have the appropriate steps been taken under the Ill Health Policy? If not what additional steps should be taken? If those steps have been taken, is Ordinance 10, section 5 the correct procedure? If not, should the concerns be dealt with under a different procedure or is it appropriate to continue under Ordinance 10, section 5? 

• Do the concerns raised relate to performance or for example, do they relate to the employee’s attitude or conduct whilst carrying out their work? If so, is Ordinance 10, section 5 the correct procedure? 

• Is this the first time that a concern has been raised about the employee’s performance?
  • If it is, is the concern serious enough to warrant formal action without any attempt to improve the standard as early action? If not, then seek to address the concern under paragraph 4 above.
  • If this is not the first time that the concern has been raised or it is serious enough to go to formal action, the Manager should review progress made during ‘early action’ reflecting on the concerns raised, the standards of performance expected and any support or training that may have been put in place. During that review the Manager may decide that he or she needs more information about the employee’s standard of work and may, with assistance from HR, consider how it would be appropriate to seek that information and who should obtain it. 

6. Taking Formal Action (Ordinance 10, section 5, point 5.4) 

It is important to remember that the employee is likely to be worried about attending a formal meeting under Ordinance 29. The Manager’s first responsibility is, as far as possible, to put the employee at their ease and conduct the procedure and any meetings in an open and transparent manner. 

(a)  Prior to the hearing (Ordinance 10 section 5, points 5.4.2 - 5.4.4) 

• It is important that the employee understands the concern(s) that have been expressed about his or her performance. The Manager (with advice from HR) may consider clarifying the concerns about the employee’s performance. 

• HR will consider whether it is appropriate for the Manager who has been dealing with the matter up to now to conduct the hearing and if not advise as to who would be the Appropriate Manager for the purposes of the hearing. 

• HR will consider whether an appropriate person should be appointed to present the allegation(s) against the employee at the hearing and advise the Appropriate Manager accordingly. 

• The person identified to hear the case is the Appropriate Manager. 

• The Appropriate Manager will:
  • send a letter (drafted by HR and with advice from HR as to timing) inviting the employee to attend a hearing; 
  • arrange for notes to be taken at the hearing;
  • consider now he or she is going to raise the matters with the employee; and
  • consider what questions he or she could ask the employee that might help clarify issues. 

• The Appropriate Manager will on the basis of the information supplied in response to the letter inviting the employee to attend a hearing decide:
  • whether or not anyone identified by the employee should be called to the hearing or be interviewed before hearing;
  • request others to attend the hearing; and
  • ensure that any additional documentation supplied by the employee is given to the person presenting the case. 

(b)  The format of the hearing 

The Appropriate Manager should explain to all those present at the hearing how the hearing will be conducted. The usual format of the hearing is set out in Appendix 1. 

(c) At the hearing 

At the hearing the Appropriate Manager may: 

• Ask questions to clarify the issues (including exploring any actions or measures that may assist to address any potential gaps in performance) and to check that what has been said and that it is understood. 

• Encourage the employee and any others present to speak freely to try to establish all the facts. 

• Establish if there is any explanation for the concerns. 

• Summarise the main points of the discussion after questioning is completed. 

• Establish 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. 

(d) Considering the decision 

The Appropriate Manager will consider all information and evidence that has been presented and any mitigating circumstances put forward by the employee. HR will advise the Appropriate Manager in the particular circumstances of the case which options are available to them, which may include: 

• taking no further action;
• issuing a warning (which may include provision for additional training or support, an improvement period, dates of any review meetings etc. (see Ordinance 10 section 5, points 5.4.11 – 5.4.15); or
• dismissing the employee (with or without notice) (see Ordinance 10, section 5, points 5.4.16 – 5.4.17). 

Following such deliberation the Appropriate Manager will take their decision. HR will draft and the Appropriate Manager will send out the letter explaining the decision and the reasons for it and the right of appeal. 

Appendix 1: Format for a Hearing under Ordinance 10, section 5

The usual format for a hearing will be: 

• Introductions. 

• Representation – where an individual has brought a representative it is usually helpful if the Appropriate Manager or HR Manager clarifies how that role is to be fulfilled (see Operating Principles: Ordinance 10, section 1, point 1.12). 

• The Appropriate Manager or person presenting should explain the nature of the concerns to the employee. 

• The employee or their representative may ask questions of the Appropriate Manager and any witnesses present at the hearing. 

• The employee may explain the situation from their perspective. 

• The employee may ask his or her witnesses to give their evidence. 

• If there is a person presenting the allegations against the employee they may ask questions of the employee and any witnesses present at the hearing. 

• The Appropriate Manager may then ask the person presenting the case to ask their witnesses to give their evidence or ask them to do so themselves. 

• The employee or their representative may to ask any witnesses questions. 

• The Appropriate Manager may ask any final questions. 

• The Appropriate Manager may invite the employee or their representative for any final comments before making a decision. 

• The Appropriate Manager may then decide to adjourn to enable them to consider carefully all the information and evidence and, with advice from the HR Manager, reach a decision. During this time the employee and their representative can normally be asked to wait in a room nearby, from which they can be recalled when the decision has been taken. 

• If it seems that it may take longer to reach a decision the Appropriate Manager may inform the employee that they will be notified of the decision in writing.