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:
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
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
Non-Critical Approach – Willingness to Respond
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
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.
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
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.
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
At the interview the employee should be reminded of the earlier
informal discussion and of the steps taken to encourage improvement, and be
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
his or her job may be at risk if satisfactory performance is not achieved
Following the issue of the written warning a second period
of monitoring and assessment should continue as appropriate. The length of
must be reasonable and the employer must be able to demonstrate this.
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,
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.