Where an employee is
not performing to the standard required
to perform their duties at work, an
employer should adopt a capability
procedure in relation to that employee.
This procedure is designed both to
encourage the employee to improve, but
also, where no improvement or
insufficient improvement results, to
ensure that the employer has acted
reasonably and fairly if it ultimately
becomes necessary to consider dismissing
the employee. The procedure is set out
in stages as follows:
Informal Discussion.
The initial step
involves an informal discussion with the
employee focusing in particular on how
the employee is thought not to be
performing satisfactorily. It is
necessary for the employer to ascertain
whether the employee accepts there is a
problem and, if so, whether he or she
will respond to constructive moves and
suggestions to aid improvement. The
response of the employee will generally
be one of the following:
-
the employee
accepts there is a problem and
leaves it to the manager to suggest
what should be done
-
the employee
expresses doubt there is a problem,
but indicates willingness to respond
to any suggestions the manager may
make
-
the employee
acknowledges the problem and asks
for help to resolve it
-
the employee
denies the existence of any problem
The employer should
make and keep an informal note of the
date, time and conclusions reached for
his or her own use later if the need to
refer back to this initial conversation
arises.
Non-Critical Approach
– Willingness to Respond
Where the employee
expresses a willingness to respond to
any suggestions for improvement or asks
for help to resolve the problem, the
employer should adopt a non-threatening
and non-critical approach with the aim
of helping the employee to find a
solution through a sensitively-handled
discussion. The employer should
encourage the employee to describe the
problem ensuring that pertinent
questions are not evaded by the
employee.
Ultimately the
employer should ensure that the
discussion is shaped so that the real
problem is unearthed, the factors
contributing to it are explored,
possible solutions are identified and
discussed, and if possible an action
plan agreed to help the employee to
overcome the problem. After the
discussion it may be appropriate for the
employer to put any agreed action plan
into a separate note and give a copy to
the employee.
Monitoring
Arrangements should
be set in place to monitor the
employee's continuing performance with
the observations on it being recorded.
The employee's performance should be
assessed as objectively as possible and
as frequently as appropriate, bearing in
mind the nature of the employee's duties
and the length of time which would be
reasonable to allow for improvement.
If the employee has
already indicated that he or she does
not accept that his or her performance
at work is inadequate the employee is
unlikely to respond constructively to
persuasion to improve. This type of
response can justify shortening the
monitoring period which might otherwise
be allowed for improvement.
If after the agreed
period of monitoring there has been a
failure to improve or continued
unsatisfactory performance, the employee
should be invited to a formal interview
to discuss the matter and informed that
there will then be an opportunity to put
forward an explanation and to be
accompanied by a colleague or Trade
Union representative of their choice.
Formal Interview –
Written Warning
At the interview the
employee should be reminded of the
earlier informal discussion and of the
steps taken to encourage improvement,
and be told as precisely as possible of
the complaints about his or her
performance. If the explanation offered
is not accepted, a formal written
warning should be given to the employee
as soon after the interview as possible.
It should inform the employee that his
or her job may be at risk if
satisfactory performance is not achieved
and sustained.
Following the issue
of the written warning a second period
of monitoring and assessment should
continue as appropriate. The length of
this second period must be reasonable
and the employer must be able to
demonstrate this.
Consideration of
Alternative Employment.
If the employee's
improvement following the formal warning
is insufficient to enable him or her to
be regarded as capable of doing the work
he or she is employed to do, the
employer should consider whether
alternative (but not necessarily
equivalent) employment can be offered to
the employee, and, if so, make the offer
in writing, explaining why it is being
made and the possible consequences of
refusing it. The employee should then be
given sufficient time to consider the
offer.
Dismissal / Further
Monitoring.
Where no offer of
alternative employment is made (or the
employee has rejected it) a further
formal interview with him or her is
necessary. Again the employee should be
informed of it in advance and the
reasons for it. At the meeting a history
of the case should be discussed and the
employee's explanations, if any,
listened to and considered before a
decision is taken whether or not to
allow further time for improvement,
backed by a further warning or caution,
or whether dismissal is the only
alternative.
Right of Appeal.
If notice of
dismissal is given the employee should
be told of any available right of
appeal. This right of appeal would be
the same avenue of appeal as would be
available if appealing against a
disciplinary decision.
The Interactive
Law Group