policy: c30 capability policy€¦ · policy: c30 capability policy version: c30/02 ratified by:...

Policy: C30

Capability Policy

Version: C30/02 Ratified by: Trust Management Team Date ratified: 12 June 2013 Title of Author: Head of HR Consultancy Services Title of responsible Director Director of Organisation Development and Workforce Governance Committee Trust Partnership Forum

thDate issued: 5 August 2013 Review date: February 2016 Target audience: All staff Trust wide NHSLA relevant? No

B Can be disclosed to patients and the public Disclosure Status

EIA / Sustainability

H:\C30EIA awaiting

Implementation Plan

H:\

Appended below Monitoring Plan

Other Related Procedure or Documents: S8 - Managing Health and Attendance Policy; D4 - Disciplinary Policy; D4A - Policy for Handling Concerns about a Doctor’s Performance (including guidance on disciplinary procedures); G1- Grievance and Disputes Procedure; D3 - Diversity and Equality Policy; S26 - Supervision Policy; P21 - PDR Policy; W1- Whistleblowing Policy; B3 - Dignity at Work;

West London Mental Health NHS Trust of 24Policy C30 First date of issue: 4th March 2011 This is current version C30/02June13


Equality & Diversity statement

The Trust strives to ensure its policies are accessible, appropriate and inclusive for all. Therefore all policies will be required to undergo an Equality Impact Assessment and will only be approved once this process has been completed

Sustainable Development Statement

The Trust aims to ensure its policies consider and minimise the sustainable development impacts of its activities. All policies are therefore required to undergo a Sustainable Development Impact Assessment to ensure that the financial, environmental and social implications have been considered. Policies will only be approved once this process has been completed

C30 – Capability Policy

Version Control Sheet

Version Date Title of Author Status Comment C30/0.1 02.11.10 Associate Director HR New Policy -

developed

C30/0.2 11.11.10 Director Organisation

Development and Workforce

Draft

C30/0.3 25.11.10 Associate Director HR Draft

C30/0.3 09.12.10 Associate Director HR Draft Amendments following Policy Sub Group/mtg with Convenors.

C30/0.4 04.01.11 Associate Director HR Draft Amendments from ED of

OD and Workforce.

C30/01 21.02.11 Associate Director HR Draft Amendments from Trust wide consultation. Presented to 28

th Feb 11

Policy Review Group for approval – approved.

C30/01 04.03.11 Associate Director HR New Policy Issued

C30/02 12.02.13 Associate Director HR Policy reviewed

Changes to order of appendices and additional appendix 7 added regarding appeal process

Under consultation, ending 31/05/2013

C30/02 29.05.13 Senior HR Consultant Policy reviewed following consultation

Removal of one appendix now incorporated into the body of the policy. Minor typographical amendments and editing


C30/02 12.06.13 Senior HR Consultant Policy reviewed

Sections 2 - Definitions clarified following TMT meeting.

Related policies updated Policy re-issued

05.08.13


Content Page No.

1. Introduction & Scope 6

2. Definitions 6

3.

3.1

3.2

3.3

3.4

3.5

3.6

3.7

Duties

Chief Executive

Accountable Director

Managers

Policy Author

Local Policy Leads

All Staff

HR staff

6

4. Policy Objective 8

5. Responsibilities of Managers and Staff Members 8

6. Capability or Conduct 9

7. Possible Causes of Incapability and Solutions 9

8. First Steps - Informal 9

9. Formal Action 10

10. Right to be Accompanied 14

11. Failure to Attend Meetings 14

12. Grievances 15

13. Witnesses 15

14. Appeals 15

15. Monitoring and Compliance 17

16. Training 17

17. Acronyms 17


18. Related Policies and Procedures 17

19.

1.

2.

3.

4.

5.

6.

7.

Appendices

Flowchart of the Capability Procedure

Outline of an Informal Meeting

Example Action Plan

Procedure at an Appeal Review Hearing

Final Stage Capability Hearing Procedure

Procedure at an Appeal Hearing Following a Final Capability Hearing

Monitoring Template

18

18

19

20

21

22

23

24


1. INTRODUCTION & SCOPE 1.1 This policy and procedure applies to all employees of West London Mental Health

NHS Trust, except for medical staff. Trust Policy D4A sets out separate procedures that apply to all medical staff.

1.2 Other workers will be subject to the procedures laid out in any written agreement

that exists between the Trust and/or the worker and/or the agency through which they work. This procedure does not apply to agency workers and independent contractors, including Bank only workers.

1.3 Separate procedures exist for managing health and attendance (Policy S8) and for

managing conduct (Policy D4). Staff are encouraged to familiarise themselves with these policies which are on the Exchange (intranet).

2. DEFINITIONS

2.1 Capability refers to an employee’s skills, aptitude, ability and knowledge in relation to the job that they are employed to do. Lack of capability will normally lead to unsatisfactory performance. It is therefore important to ensure that any capability issue is identified and rectified quickly.

2.2 Capability refers to situations where an employee is genuinely trying to perform to

the required standard but is incapable of doing so. It is not a deliberate failure to perform, poor attitude, or failure to meet standards as a result of carelessness, negligence or idleness; which are matters of conduct.

2.3 Conduct is an employee’s behaviour in the workplace. Gross Misconduct is where

an employee commits an act or acts which are so serious as to justify possible dismissal. The Trust’s Disciplinary Policy D4 sets out acceptable standards of conduct expected of all its employees. Breaches of these rules are considered to be “misconduct” and examples are set out in the procedure.

2.4 The Trust’s Policy for Handling Concerns about a Doctor’s Performance D4A

(paragraph 4.3) also includes examples of matters which fall under capability. For example inappropriate delegation of clinical responsibility.

2.5 This policy and the procedure detailed below are designed to deal with those cases where the employee is lacking in some area of knowledge, skill or ability resulting in failure to be able to carry out the required duties to an acceptable standard. It should be used where a genuine lack of capability exists, rather than a deliberate failure of an employee to perform to the standards of which they are capable.

3. DUTIES 3.1 Chief Executive

The Chief Executive is responsible for ensuring that the Capability policy in place and its use complies with best HR practice and legal and regulatory obligations. In


particular, to ensure the Capability policy is used effectively and consistently across the Trust.

3.2 Accountable Director

The Director of Organisation Development and Workforce is responsible for this policy and will have the responsibility for trust wide implementation and compliance. The Accountable Director will ensure the monitoring of the policy and associated processes.

3.3 Managers

• Managers will ensure that any issues of capability are resolved promptly and informally where possible. This would include the facilitation of local resolution.

• To deal with any matters raised sensitively and in confidence and seek support from their own line manager and HR.

• Where matters proceed to the formal process to ensure that the causes of the capability are thoroughly explored and then resolved in accordance with the time scales stipulated in this policy.

3.4 Policy Author

The Policy Author is responsible for the development or review of a policy as well as ensuring the implementation and monitoring is communicated effectively throughout the Trust via CSU / Directorate leads and that monitoring arrangements are robust.

3.5 Local Policy Leads

Local policy leads are responsible for ensuring policies are communicated and implemented within their CSU / Directorate as well as co-ordinating and systematically filing monitoring reports. Areas of poor performance should be raised at the CSU / Directorate SMT meetings.

3.6 All Staff

• Raise matters of concern informally with their manager in the first instance and to allow them an opportunity to resolve such matters prior to instigating a formal grievance.

• To seek advice from their Trade Union, professional association or HR representative if they require clarification on any part of the Grievance and Disputes Policy

• To participate in any mediation or formal processes in a constructive and timely manner, attending planned meetings as required

3.7 HR Staff

• To support line managers in the effective, consistent and equitable application of

the policy • Monitoring and compliance responsibilities are included in section 15.


4. POLICY OBJECTIVE 4.1 The policy sets out a fair and objective procedure for circumstances in which a staff

member does not meet the required standards of work performance, with the emphasis on a supportive approach to bring about the required improvement in performance or to find an alternative suitable role.

4.2 The procedure provides a framework to ensure managers deal with cases of capability consistently with the objective of improving an individual’s performance to the required level, taking into account any underlying reasons, mitigating circumstances and potential issues of discrimination.

4.3 Should the handling issues of performance be necessary under this policy the informal and formal stages will normally be followed sequentially. There may be however, circumstances in which it is necessary to miss out one or more stages.

The flowchart at Appendix 1 shows an overview of the capability procedure.

5. RESPONSIBILITIES OF MANAGERS AND STAFF MEMBERS 5.1 Individuals are expected to be capable of carrying out the work they are engaged to

do at the required standard. Both managers and members of staff must ensure there is clarity in the role and responsibilities to enable staff to undertake their role to an acceptable level. The responsibilities listed below will enable both staff and managers to deal with any capability issues positively and quickly.

Managers;

• should ensure regular supervision and or 1:1 meetings are undertaken to provide a constructive approach in monitoring their staff’s performance on an ongoing basis.

• should ensure annual appraisal and PDRs are undertaken. Performance against agreed objectives should be regularly reviewed.

• should provide release to enable their staff to undertake necessary mandatory training

• must make reasonable efforts to address issues of capability informally without the need to instigate formal proceedings

• should provide the staff member with a written record of discussions which should be signed by both parties and will include agreed action at all stages of the procedure – both informal and formal and retain a copy.

All Staff;

• must take full accountability for their own performance and behaviour • should ensure they are compliant with mandatory training • to perform in line with their job description and take ownership for their agreed

personal development needs • work constructively with managers and colleagues to address any underlying issues

which may be affecting performance.


6. CAPABILITY OR CONDUCT 6.1 Sometimes it can be difficult to establish whether a performance issue relates to an

employee’s conduct or their capability. In these circumstances, the employee’s manager will need to establish the answer through investigation or counselling. There should be no automatic assumption that it is a conduct issue.

6.2 In some circumstances, there may be both capability and conduct issues. In these circumstances, the manager should keep these issues separate and deal with each under the appropriate policy.

6.3 During the use of this procedure, however, it may be established that the issues are conduct related. The staff member will then be advised that the Trust’s Disciplinary Policy D4 will be used. The reverse will apply in investigations initially undertaken through conduct procedures.

6.4 Staff members that do not actively cooperate within the terms of this procedure may be referred to the Trust’s disciplinary procedure. For example; should a staff member fail to attend meetings as part of this process or there is a lack appropriate engagement by the staff member in setting out content of an action plans.

7. POSSIBLE CAUSES OF INCAPABILITY & SOLUTIONS 7.1 In order to effectively manage incapability, managers should take into account the

causes of the problem. Causes can include:

• inadequate or insufficient training, systems, policies and procedures, tools/equipment, supervision/support. This is often identified by a new manager.

• a lack of clarity about the job role, objectives, management instructions • excessive workloads • poor working relationships or bullying/harassment • ill health or personal problems • Inability to adapt to a changing work environment • Communication problems • Learning difficulties, e.g. Dyslexia.

7.2 Possible solutions may include coaching the employee, reviewing systems, policies, procedures, supervision and support, fixing faulty equipment, reviewing workloads, clarifying job roles, instructions, additional training to the employee or their supervisor on people management.

8. FIRST STEPS: INFORMAL 8.1 If a problem has been identified and not resolved via normal staff/manager

discussion the first step, under this procedure, is for the employee’s manager to meet and discuss the poor performance with the employee to:

• Make the employee aware of the issues and the effect on the organisation • Attempt to establish the cause/s • Obtain the employee’s perspective on the matter


• Clarify expected standards • Identify solutions • Identify realistic, measurable targets and the period over which these should

be achieved and sustained (between 6 and 12 weeks) to achieve a satisfactory improvement in the employee’s performance

• Confirm what methods will be used to assess the employee’s performance • Confirm when the performance standards will be reviewed and the fact that

formal action could be taken if the required improvement is not satisfactorily achieved and sustained.

8.2 An example outline of such a meeting is set out at Appendix 2. A note should be kept of the meeting and the solutions/other outcomes identified. This note can be made available to the employee if requested. In addition, an action plan will be discussed and completed. A copy will be given to the employee (see Appendix 3 for example action plan).

8.3 Some possible solutions are detailed in section 6 above. The solutions should be agreed between the employee and the manager. Where it is not possible to reach agreement, the manager will need to carefully assess the situation and decide what solutions are appropriate in the circumstances, taking account of the employee’s perspective.

8.4 It is important that after the Informal Meeting, the manager holds regular informal interim review meetings with the member of staff, both to provide feedback on progress and to encourage improved performance. Any additional training recommended should also be discussed.

At the end of the review period the manager will meet with the member of staff and inform them that either:

• They have achieved the specified levels of performance and no further discussions or actions are necessary, or

• There has been little or no improvement and it will be necessary to move to the formal stage.

9. FORMAL ACTION 9.1 Summary of Formal Action

9.1.1 If, despite informal meetings/discussions and support, e.g. training, enhanced supervision, the employee is unable to reach and/or maintain the required standard of performance, the consequences of failure to do so should be set out in writing to the employee, using a series of formal stages, which are cumulative and follow the sequence set out below:

• First Formal Stage and Review Period • Final Formal Stage: Possible Dismissal/Alternatives to Dismissal

9.1.2 The First Formal Stage will consist of a formal meeting to agree an action plan, setting out the actions required by both the employee and their manager to bring about an improvement in the situation. Regular reviews will continue during the period that the formal action is active. This period will be for the employee to


demonstrate sustained improvement and for the manager to ensure they continue to assess the employee’s needs, providing tailored support to the individual and continually assessing their capability and overall performance.

9.1.3 In exceptional circumstances, it may be possible to proceed directly to the final formal stage without having completed the preceding steps. This might occur where the employee’s performance has had, or is liable to have, a serious or harmful impact on the organisation

9.1.4 Senior HR representatives are able to provide advice to line managers regarding instigating a formal stage of this procedure. Prior to instigating a formal stage, the line manager will seek the guidance of a senior HR representative.

9.1.5 The Review Period will depend on the complexity of the role and the specific action plan to bring about improvement but would be unlikely to be less than 2 months.

9.2 First Formal Stage Meeting and Review Period

9.2.1 If, despite support, the employee is unable to reach and/or maintain the required standard of performance, the manager may convene a first formal stage meeting. The Manager shall invite the employee to attend all formal meetings in writing giving at least at least 5 working days notice. The written notification should include:

• The stage reached in the procedure

• Clear details of the concerns relating to performance

• Any supporting documentation

• Details of any discussion to this point

• The employee’s right to representation

An HR Representative will be in attendance at this meeting providing advice to the Line Manager.

9.2.2 If, having taken account of all the circumstances, the manager considers it appropriate, the employee may be placed on the First Formal Stage of this procedure. The decision will be confirmed in writing, setting out the nature of the problem, and an action plan (see Appendix 3), detailing the action required of both the employee and the manager, including details of the improvement required, the targets and timescales for review (normally 3-6 months), clarifying the possible next stage if the employee does not attain the required standard of performance and sustain this. The letter will also advise the employee’s right to appeal. The possible actions should have been discussed in the meeting and should be agreed by both parties.

9.2.3 This letter will be a formal capability warning which will remain on file for 12 months. The purpose of this is to set a duration that should there be a significant relapse of performance issues during that period the manager can refer the staff member to the next stage.

9.2.4 The member of staff will have the right of appeal against this decision.


9.2.5 The action plan will be complemented by a specified review period, which will continue for the period that the First Formal Stage is active. The purpose of the review period is for the employee to demonstrate sustained improvement and for the manager to ensure they continue to assess the employee’s needs, providing tailored support to the individual and continually assessing their capability. Details of this review period, such as supervision meetings, should be planned and set out in the action plan, where possible. Additional action, such as demotion or redeployment may be taken. These options are set out in Section 9.7 of this procedure.

9.3 First Formal Stage: Final Review Meeting

9.3.1 As per the agreed action plan, review meetings will be held regularly to discuss progress.

9.3.2. A final review meeting will take place to discuss the overall progress since the action plan and review period was set and inform the outcome of the review period. At this meeting there will be three possible outcomes.

1. The member of staff has now reached, or is shortly expected to reach the specified levels of performance and no further formal action is taken if the standards continue to be met.

The manager will continue to hold regular review meetings during the period of the formal capability warning. If there are no further concerns during that period the manager will meet at the end of the period to confirm no further action will be taken.

If however, further concerns arise during his period the manager may reinstate the formal capability procedure.

2. The member of staff has made substantial improvements, but his/her performance is still well below standards.

The review period will be extended by a further period and the action plan amended as necessary. A further formal review meeting will be set.

3. The member of staff has made little or no progress, and has shown few signs s/he is capable of meeting the required standard a final capability hearing will be arranged. The manager should advise the member of staff in writing that dismissal may be an outcome at that hearing.

The manager should also at this stage discuss with the member of staff the option of downgrading and should also consider other possible outcomes set out in Paragraph 8.2.4 below.

9.4 Final Formal Stage: Possible Dismissal/Alternatives to Dismissal

If, despite the First Formal Stage and Review Period, and having been offered appropriate support, the employee is unable to reach and/or maintain the required standard of performance, the manager may convene a final stage capability hearing, the arrangements for which are set out below at section 9.7. If, having taken account of all the circumstances, the chair of this final stage capability hearing considers it appropriate, the employee may be dismissed on grounds of


capability and will have the right to appeal against their dismissal. If a final stage capability hearing could lead to dismissal, the chair of the meeting must have the authority to dismiss.

The following officers will have the authority to dismiss under this procedure:-

1. Directors and Non-Executive Directors 2. Assistant/Deputy Director level managers 3. Managers at Service Manager/Head of Service/Department/Function level 4. Any manager of AFC Band 8 or above, nominated by the relevant Director

9.5 Documents to be used at a Final Stage Capability Hearing

9.5.1 The manager, the employee and their representative will have the opportunity to submit documents for use at the final stage capability hearing. These documents will be distributed to all attendees within five working days of the hearing.

9.5.2 The documents submitted by the manager at a final stage capability hearing should include all the prior documentation and action plans related to the earlier stages of the process. Other documents may include notes of 1:1 sessions, training courses attended and other areas of support provided.

9.6 Final Stage Capability Hearing

9.6.1 The procedure to be followed at a final stage capability hearing is detailed in Appendix 5. The final stage capability hearing will be chaired by a senior manager of the Trust with dismissal authority, supported by another manager and assisted by a member of HR staff. Specialist advisors to the panel may be appointed instead of a supporting manager. For example, if the chairperson is from a non-nursing background and the matters being examined may require specialist nursing advice.

9.6.2 The chairperson and their advisors will all equally be able to participate in proceedings. However, the responsibility for making the final decision will rest with the chairperson. The chairperson will also be responsible for ensuring the procedure followed is fair and that the circumstances of the matter are appropriately established to enable them to reach an appropriate decision. The HR representative will be able to provide further advice on these points.

9.6.3 The chairperson is responsible for the conduct of the meeting and may at any stage decide to adjourn/adapt proceedings to ensure fairness and clarity on any points.

9.6.4 The chairperson will fully consider all the information presented to them by the employee and their representative and the manager, together with relevant advice from the panel advisor/s in deciding whether to dismiss, take formal action, no action or to make other recommendations, for example to improve practice or the working environment. In some exceptional circumstances, this may include a recommendation to discuss the possibility of redeploying an individual; however, any move would be made in agreement with the employee.


9.7 Final Capability Hearing Sanctions If the chairperson decides to take formal action, they may also impose one or more of the following outcomes:

• Extension of previous monitoring period. A further Final Capability Hearing may take place at the end of this period.

• Redeployment

Search for an alternative suitable role/work base, with the agreement of the individual though the terms and conditions will be those of the role and pay protection will not apply if the role is of a lower grade or provides different allowances. If, following a 28-day period, agreement cannot be reached on a suitable alternative, the employee may be required to move without agreement or alternative sanctions may apply such as dismissal.

• Demotion/Down Banding

Staff who are unable to perform at the required level may be demoted without pay protection if, despite being afforded appropriate opportunities to enable them to perform at the higher level they cannot do so. In the future the employee may apply for higher banded posts via a competitive process.

• Appropriate training and development • Some other intervention

This may include, for example, an intervention to improve working practice or the working environment.

• Dismissal with contractual notice or with pay in lieu of notice

The outcome of the meeting and reasons for the decision, together with details of how to appeal against the decision will normally be set out in writing to the employee within five working days of the review meeting.

10. RIGHT TO BE ACCOMPANIED 10.1 At all meetings under the formal action section of this policy and procedure, the

employee has the right to be represented either by a recognised Trade Union Representative, a recognised professional organisation representative, or a workplace colleague not acting in an official capacity. It is the employee’s responsibility to arrange their own representation however every attempt should be made to agree the dates with employee and representative. Legal representatives, whether solicitors, barristers or otherwise, are not permitted to take part in the proceedings in any capacity.

11. FAILURE TO ATTEND MEETINGS

11.1 Trust employees will be expected to take reasonable steps to attend all meetings, whether as the employee concerned or as a witness. If the employee concerned fails to attend without good reason and does not nominate a representative to


attend in their absence, the meeting/hearing may take place in their absence if they have failed to attend once before.

11.2 If a meeting/hearing is arranged but appropriate representation cannot be obtained, the employee may request the meeting/hearing be rescheduled and they should provide to the investigating manager details of alternative dates and times over the five days following the original date of the meeting/hearing that they and their representative will be available. Failure to do so may mean the meeting/hearing being rescheduled in the absence of information on the employee and their representative’s availability.

11.3 Appropriate weight shall be given to the evidence of any witness that fails to attend a meeting/hearing and if known their reasons for non-attendance will be taken into account.

12. GRIEVANCES 12.1 During the application of this policy and procedure, if a grievance is raised that

relates to the employee’s incapability issues or their management, the Trust will consider how best to proceed. The Trust recognises the merit of resolving all issues as quickly as possible and will therefore normally attempt to deal with both matters at the same time under this procedure. The Trust may also consider suspending the incapability procedure for a short time whilst the grievance is dealt with under the Grievance Procedure, where applicable. HR advice regarding grievances should be sought and reference should be made to the Grievance Procedure in relation to matters that are specifically excluded from its scope.

13. WITNESSES 13.1 If the investigating manager is relying upon evidence from a witness, the witness’s

statement should also be supported by their attendance at the performance review meeting. It is the investigating manager’s responsibility to arrange the attendance of their witnesses.

13.2 If the employee concerned and their representative wish to call witnesses at the

performance review meeting, they will be responsible for arranging witnesses’ attendance.

14. APPEALS 14.1 Where formal action is taken, the employee concerned has the right to appeal

against the decision within 10 calendar days of the date of the letter confirming the outcome of the hearing, using. Both the employee’s intention to appeal and their detailed grounds for the appeal must be submitted at this stage. Failure to do so may mean that an appeal is not heard.


14.2 The purpose of an appeal hearing is normally to review the decisions made by either the line manager at the first formal stage.

14.3 The procedure to be followed at an appeal review hearing is detailed in Appendix 4

and that for an appeal hearing following a Final Stage Capability Hearing is detailed in Appendix 6.

14.4 The appeal hearing panel for the First Formal Stage Appeal shall consist of a chairperson plus a senior HR representative, who will usually be more senior than the chairperson of the performance review meeting, against whose decision the employee is appealing.

14.5 For a Final Stage Capability Hearing the chairperson must be at least at Band 8 level or equivalent. The chairperson should not have been involved in the preceding stages of the procedure. The chairperson will be assisted by the Associate Director of OD and Workforce (or their nominated representative).

14.6 Specialist advisors to the panel may be appointed. 14.7 The chairperson and their advisors (this includes the HR advisor and any specialist

advisor in attendance, as detailed above) will all equally be able to participate in proceedings. However, the responsibility for making the final decision will rest with the chairperson. The chairperson will also be responsible for ensuring the procedure followed is fair and that the circumstances of the matter are appropriately established to enable them to reach an appropriate decision. The HR representative will be able to provide further advice on these points.

14.8 The chairperson will fully consider all the information presented to them by both the employee and their representative and the manager, together with relevant advice from the panel members and advisor/s in deciding whether to uphold the decision of the performance review meeting chairperson.

The chairperson may decide to

• uphold/overturn the decision of the performance review meeting chairperson.

• reduce/increase the level of sanction and/or remove/add other requirements, for example, redeployment, training/development, deferral of incremental pay progression, or some other intervention, as detailed above in section 8.2.4.

14.9 The appeal hearing chairperson is responsible for the conduct of the meeting and

may at any stage decide to adjourn/adapt proceedings to ensure fairness and clarity on any points.

14.10 The decision of the appeal hearing chairperson will be final and the employee will have no further recourse to have the matter further examined under any Trust procedures.


15. MONITORING AND COMPLIANCE 15.1 The HR Consultancy Team will monitor the use and implementation of this policy to

ensure consistency across the Trust. Information on Capability processes will be recorded on the monthly HR scorecard and reported to the Trust Board as required.

16. TRAINING 16.1 Training in performance management will be provided by the Trust for managers.

This will cover the management of capability issues.

17. ACRONYMS

HR Human Resources

CSU Clinical Service Unit

SMT Senior Management Team

PDR Personal Development Review

OD Operations Director

L&D Learning & Development

AFC Agenda for Change

18. RELATED POLICIES AND PROCEDURES S8 - Managing Health and Attendance Policy

D4 - Disciplinary Policy

D4A - Policy for Handling Concerns about a Doctor’s Performance (including guidance on disciplinary procedures)

G1 - Grievance and Disputes Procedure;

D3 - Diversity and Equality Policy

S26 - Supervision Policy

P21 - PDR Policy

W1- Whistleblowing Policy;

B3 - Dignity at Work;

West London Mental Health NHS Trust of 2

19. APPENDICES

APPENDIX 1: FLOWCHART OF THE CAPABILITY PROCEDURE

1. INFORMAL PROCESS Meet to discuss the poor performance with the employee to; • Clarify expected standards and identify gaps • Identify solutions • Identify realistic, measurable targets and the period over which these should be

achieved, setting out a written action plan • Agree a review period (between 6 & 12 weeks) • Discuss the consequences of failure to improve/sustain improvement, e.g.,

progress to a formal process. • Agree a written action plan (see Appendix 3)

No Improvement in performance

2. PERFORMANCE REVIEW MEETING: FIRST FORMAL STAGE MEETING

Line manager, HR, TU representative & employee meet to discuss the poor performance, to; - Review performance against the agreed action plan and standards set at informal stage

- Consider effectiveness of support given and what additional assistance can be offered


3. FIRST FORMAL STAGE: FINAL REVIEW MEETING At this meeting there will be three possible outcomes

i If performance improving, continue to monitor and support

ii If performance improving but acceptable standard not yet achieved extend review period. Action plan amended

iii If no improvement, advise member of arrangement of Final Stage Capability Hearing


4. PERFORMANCE REVIEW MEETING: FINAL STAGE CAPABILITY HEARING: POSSIBLE DISMISSAL/ALTERNATIVES TO DISMISSAL

Line manager, panel chair plus either another manager or specialist adviser, HR, TU representative & employee meet to discuss the poor performance and consider dismissal on the grounds of capability.

4Policy C30 First date of issue: 4th March 2011 This is current version C30/02June13


APPENDIX 2: OUTLINE OF AN INFORMAL MEETING

The following is an example outline of an informal meeting:

• Explain that the meeting is to discuss the employee’s job performance and that the meeting is of a counselling and investigatory nature, and not part of the disciplinary procedure. Employee’s should be advised that these matters could lead to a formal process as detailed in this policy.

• At the meeting, clearly state the nature of the problem and explain why it is a problem, for example the consequences for the Trust when the employee makes mistakes or misses deadlines.

• Give the employee specific examples of instances where their performance has fallen below the required standard or where tasks have not been completed on time or satisfactorily.

• Remind the employee that you want to explore how to support the employee so that they improve their performance.

• Attempt to seek the employee's agreement that there is a problem with certain aspects of their performance.

• Ask the employee what they think the root cause of the problem is. • Consider any mitigating factors put forward by the employee, for example problems

in the employee's personal life. • Restate what is expected is terms of job duties, outputs and targets. Avoid

assuming that the employee knows everything that is expected of them. • Ask the employee's opinion on what they can do to achieve improvement in

performance. • Seek to agree specific action points with the employee, the details of which will

depend on whether or not any specific cause of unsatisfactory performance has been identified.

• Agree a timescale for the improvement to be achieved (usually between 6 and 12 weeks).

• Arrange training/support where appropriate. • Schedule a follow-up meeting to review the employee's performance and make sure

that the meeting takes place. • Keep a record of the meeting and what has been agreed and write up and agree an

Action Plan; see appendix 3.

APPENDIX 3: EXAMPLE ACTION PLAN

Target Area

Expected Standard/level of Proficiency

Gap Required Actions

Who Will Provide Support?

Timescale Review Date

Date to Achieve Expected Standard/Level of Proficiency

1 month Further training on RIO

L&D Department

Completion of care plan details on Rio

Record detailed updates of all contact on RIO within 24 hours, including assessment details and agree plans

50/80 records currently incomplete

Within 1 month

Protected time each day to complete records and familiarise self with the new system

20/80 records not updated Line Manager

to arrange Ongoing for one month 1 month

Within 3 months

3 months Local RIO

Lead Ongoing Support from

designated RIO lead

No consistent record for other practitioners to refer to regarding the outcomes of the reviews or the agreed action plans

Commence and complete ECDL training to improve IT literacy

3 months Commence

course within 3 months and complete within a year

L&D Department

This action plan has been discussed and will be implemented by:

Name of Manager:___________________________________

Signed: ___________________________ Dated: ______________________

Name of Employee: _________________________________

Signed: __________________________ Dated: ______________________



APPENDIX 4: PROCEDURE AT AN APPEAL REVIEW HEARING FOLLOWING FIRST STAGE REVIEW MEETING.

At the hearing of a review of the decision made following a performance review meeting, the following procedures should be observed.

(a) The appellant and/or their representative shall put their case in the presence of the Trust’s representative.

(b) The Trust’s representative and members of the Appeal Panel shall have the opportunity to ask questions of the appellant and/or their representative.

(c) The Trust’s representative shall state the Trust’s case in the presence of the appellant and their representative.

(d) The appellant and their representative and members of the Appeal Panel shall have the opportunity to ask questions of the Trust’s representative.

(e) The Trust’s representative and the appellant or their representative shall have the opportunity to sum up their cases. In their summing up neither party may introduce any new matter.

(f) Nothing in the foregoing procedure shall prevent members of the Appeal Panel from seeking to clarify any points from either party, managing the conduct of the case presenters or amending proceedings to ensure fairness, clarity and the ability to hear the matters appropriately.


APPENDIX 5: FINAL STAGE CAPABILITY HEARING PROCEDURE

At a final stage performance review meeting the following procedures shall be observed:

(a) The line manager shall state the case in the presence of the employee and their representative and may call witnesses.

(b) The employee and/or her/his representative shall have the opportunity to ask questions of the investigating manager and their witnesses.

(c) The members of the performance review meeting panel shall have the opportunity to ask questions of the investigating manager and witnesses.

(d) All parties shall have the opportunity to cross-examine the witnesses on any matter referred to in their examination by members of the panel, the investigating manager and the employee or their representative.

(e) The employee and/or their representative shall put their case in the presence of the investigating manager and may call witnesses.

(f) The line manager shall have the opportunity to ask questions of the employee, their representative and their witnesses.

(g) The members of the panel shall have the opportunity to ask questions of the employee, their representative or their witnesses.

(h) All parties shall have the opportunity to re-examine her/his witnesses on any matter referred to in their cross examination by members of the panel, the employee/their representative or the line manager.

(i) The line manager and the employee or their representative shall have the opportunity to sum up their cases if they wish. The employee and/or their representative shall have the right to speak last. In their summing up neither party may introduce any new matter.

(j) Nothing in the foregoing procedure shall prevent the panel from questioning witnesses, management and staff side as appropriate to clarify issues or seek supplementary information, manage the conduct of the case presenters or to amend proceedings to ensure fairness, clarity and the ability to hear the matters appropriately.

(k) If at the outset, the employee concerned admits the matter and does not contest the evidence presented by line manager, the panel chairperson may decide, with the agreement of all parties, to amend the procedures and hear evidence solely relevant to the level of sanction, for example, on mitigating circumstances and the seriousness/consequences of the underperformance, in order to determine the appropriate outcome.

(l) The panel may, at its discretion, adjourn the meeting in order that further evidence may be produced by either party or for any other reason. If further evidence is produced then both parties will have the opportunity to test the evidence put before the panel.

(m) The line manager, the employee and their representative shall withdraw. Witnesses will only have been present whilst giving their evidence and will leave the meeting immediately afterwards.

(n) The panel shall deliberate in private only recalling both parties to clear points of uncertainty on evidence already given. If recall is necessary, both parties shall return notwithstanding only one is concerned with the point giving rise to doubt.


APPENDIX 6: PROCEDURE AT AN APPEAL HEARING FOLLOWING A FINAL CAPABILITY HEARING.

At the outset of the hearing, the Chair of the Capability appeal panel will welcome and introduce all parties and set out the structure of the hearing. The focus is not to rehear the case but to explore the grounds for appeal and the robustness of the previous process and the resulting decisions.

Representatives of management and the employee appealing (and his/her staff representative or colleague) shall be present throughout the hearing except when an adjournment is agreed or where the panel are deliberating in private

Notes will be taken. This might be undertaken by a panel member or a dedicated note taker, particularly if the case is complex.

1 The appellant or his/her representative shall put their case in the presence of a previous disciplinary panel management representative and may call witnesses.

2 The management representative shall have the opportunity to ask questions of the appellant, his/her representative and the witnesses (immediately following their individual statements).

3 The members of the Appeal Panel shall have the opportunity to ask questions of the appellant his/her representatives and any witnesses.

4 The appellant or their representative shall have the opportunity to re-examine the witnesses on any matter referred to in their examination by the appeal panel and the management representative.

5 The management representative shall state the management case in the presence of the appellant and his representative and may call witnesses.

6 The appellant or their representative shall have the opportunity to ask questions of the management representative.

7 The members of the Appeal Panel shall have the opportunity to ask questions of the management representative and any witnesses they call.

8 The management representative shall have the opportunity to re-examine the witnesses on any matter referred to in the examination by the Appeal Panel, the appellant, or their representative.

9 The management representative and the appellant and/or their representative shall have the opportunity to sum up their cases if they wish. The appellant and their representative shall have the opportunity to conclude the presentations. In their presentations neither party may introduce any new material.

10 Nothing prevents the members of the Appeal Panel from inviting either party to clarify or amplify any statement they may have made, or from asking any further necessary questions.

11 The Appeal Panel may, at its discretion, adjourn the appeal so that further evidence may be produced by either party to the dispute. The management representative, the appellant and their respective representatives shall then withdraw.

12 The Appeal Panel shall deliberate in private, recalling, if necessary, both parties to clarify points of uncertainty on evidence already given. If recall is necessary both parties shall return notwithstanding only one is concerned with the point giving rise to doubt.

13 The outcome of the appeal should be confirmed to the appellant in writing within 7 working days of the hearing.


Monitoring Template Appendix 7 POLICY / PROCEDURE: MONITORING TEMPLATE

Minimum Requirement to be Monitored

WHO (which staff / team / dept)

HOW MONITORED (Audit / process / report / scorecard) - list details

HOW MANY RECORDS (No of records / % records)

FREQUENCY (monthly / quarterly / annual)

REVIEW GROUP (which meeting / committee)

OUTCOME OF REVIEW / ACTION TAKEN (Action plan / escalate to higher meeting)

The number of formal capability cases undertaken

HR Consultancy Services HR Scorecard 100% Monthly

HR Management Group & Trust Board

Ensure undertaken within reasonable time and monitor numbers.

HR Electronic Case Management System Monthly

HRBP Performance Reports Monthly CSU SMT