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Capability Procedures

1.         Introduction

1.1 The success of the University depends upon the contribution of all employees. The University acknowledges that the vast majority of its employees meet or exceeds the demands of their respective roles.


1.2 In order to ensure all employees contribute to the agreed aims of the University, managers are expected to address concerns about performance as early as possible and are responsible for taking appropriate action. All employees are responsible for their performance and their continued development in post to meet new challenges in their work, as far as reasonably practicable, and to bring to the attention of their line manager, as soon as possible, any factors that they believe may affect their performance.


1.3 This procedure is non contractual and is designed to provide a constructive framework within which to help employees who are not achieving a satisfactory level of performance at work and to address fully the requirements of their role to the required standard.


1.4 Cardiff University is committed to equality of opportunity and to promoting an ethos of dignity, courtesy and respect throughout the organisation. The University wishes to create a positive culture towards performance at work. Issues of capability may be outside the employee’s direct control and can be symptomatic of underlying work problems or other personal issues. There is, consequently, a need to treat all capability issues with care and sensitivity and to identify and (where appropriate) address the underlying causes. Support will be provided to all employees with specific support to those covered by the Equality Act 2010. Support is available, where appropriate, from the Staff Counselling Service, the Occupational Health Unit and Dignity Advisors.


1.5 Disability has a broad definition and gives protection to some people who wouldn’t necessarily use the term “disabled” to describe themselves. It is an individualised definition in that it starts with the effect on the person rather than the nature of the diagnosis or impairment. Under the Equality Act 2010 a person is considered disabled if they have ‘a physical or mental impairment which has a substantial and long-term adverse effect on their ability to undertake day-to-day activities’. A disability will normally be identified by the individual staff member or maybe identified during discussions regarding the sickness absence. Further information in relation to the Equality Act 2010 and reasonable adjustments can be found on the University website http://www.cardiff.ac.uk/humrs/staffinfo/policyprocedures/dda1995.

1.6       The University shall seek to ensure that confidentiality is maintained throughout this procedure and every effort will be made to ensure that the employee’s position is not undermined in relation to their
colleagues. This will not preclude the University from providing relevant information about the outcome, of any such procedure, to any person where this is appropriate.

1.7       Throughout this procedure where it is not possible for an employee to attend a meeting, a further attempt will be made to reconvene at an alternative date and time suitable for all. Should the employee subsequently be unable to attend a reconvened meeting, the meeting will go ahead in their absence.

1.8       If the perceived capability problem is considered serious enough to have an adverse effect on the delivery of services, the University reserves the right to suspend an employee on full pay as a
precautionary act whilst investigations take place. This does not in itself constitute formal action in accordance with this procedure.

 1.9      If a capability problem or a problem relating to an employee’s qualification (for example the loss of a driving licence) makes it impossible to carry out their job, the employee may be dismissed under this policy if it has not been possible to redeploy the member of staff into suitable alternative employment.

1.10    This Capability procedure will not apply in the following circumstances:

i) a deliberate failure on the part of the employee to perform to the
standards in which case the University will seek to invoke the
relevant disciplinary procedure;
ii) during any relevant probationary period;
iii) cases which clearly involve conduct rather than performance;
iv) staff who are covered by the term “Academic Staff” as defined
by Statute;
v) termination at the expiry of a fixed term contract.

1.11    Any reference to a Head of School / Department or representative from Human Resources under this procedure includes nominees. It is anticipated that, in most instances, it will be the responsibility of the employee’s line manager to progress any issues to which this procedure relates.

1.12    The procedure shall be considered to comprise of two stages known respectively as “Informal” and “Formal” stages.

 

2.         Informal Stage

2.1 The informal stage is aimed at bringing concerns to the attention of the employee, and, where appropriate, the Head of School / Department, and establishing the facts and resolving issues quickly and effectively in an informal setting.


2.2 If there are concerns about an employee’s performance the line manager or nominee will meet with the employee on a one-to-one basis in order to discuss the cause for concern. This meeting is intended as a positive approach ensuring all involved are aware of any facts influencing the situation.


This meeting will normally involve consideration of:

  • the deficit in performance;
  • the causes;
  • the actions to be taken;
  • who has responsibility for the actions;
  • the performance standards that are required; 
  • any training needs;
  • the support to be given to the employee;
  • a timetable to review the agreed objectives.


2.3 At the meeting the employee will be informed that should the situation not improve, consideration will be given to formal action in accordance with the relevant University Capability Procedures. The employee will be informed in writing of the outcome of the discussions held as soon as reasonably practicable, and where appropriate, any agreed outcomes which may include an agreed action plan.


2.4 Where an appropriate review period may have been agreed, the period should be reflective of the individual circumstances. The normal maximum review period is three months; however shorter periods may be set. In cases which merit early intervention, action using the formal procedures, may be taken prior to the specified date of review.


2.5 At the end of the review period a meeting will be held with the employee to determine what, if any, further actions will be taken. The membership of the meeting will be as outlined at 2.2 above. The meeting will be documented and the outcomes confirmed, in writing as soon as reasonably practicable, to the employee.


2.6 If the above does not resolve the matter, or if it is clear that the problem is more serious than anticipated, the formal capability procedures may be invoked.

 

3.         Formal Stage

3.1 Before any formal action is taken, the line manager should contact the Human Resources Division for support and guidance on the further steps to be taken.


3.2 At any stage of the formal procedure a manager may consider a range of options including:

  • reverting to an informal approach;
  • taking action under an alternative University policy;
  • reviewing the job design, responsibilities, reporting line or other contract terms;
  • providing appropriate training or development opportunities;
  • transferring the employee to a different post within the School/Department, by agreement;
  • seeking the redeployment of the employee to another School/Department, by agreement;
  • formal action;
  • take no action.

3.3 When determining whether the formal course of action is the appropriate stage of the procedure, consideration should be given to the forms of warnings which are available and relevant to the case. The level of caution issued will depend on the seriousness and circumstances of each individual case and stages of warning can be omitted where deemed appropriate. The levels of warning available are:

 

Formal Oral WarningNormally issued at the first formal meeting to be held on personal file for 6 working months
First Written WarningNormally issued at the second formal meeting to be held on personal file for 6 working months

Final Written Warning

 

Normally issued at the third formal meeting and held on personal file for 12 working months.  In exceptional cases the warning will remain on file for a period of up to 24 working months

 

3.4       On making the decision to proceed with this stage of the procedure, the line manager, or other nominee who may include the Head of School / Department, will write to the employee inviting them to attend a formal capability meeting. A minimum of five working days’ notice must be provided. At the meeting the employee has the right to be accompanied by a local recognised trade union representative, or work colleague, not acting in a legal capacity. A representative from the Human Resources Division will also be present to service the meeting and address any points of procedure.

3.5 The employee will be informed in writing of the outcome of the meeting as soon as reasonably practicable and the right of appeal. Where a formal oral or written warning has been issued the employee will be issued with an appropriate target or a standard for improvement will be set. Confirmation will be given that an immediate and sustained improvement will be expected and that should there be no improvement a further formal interview will be held which may result in a further, or final, warning or dismissal.


3.6 If within the specified period the employee’s performance does not improve to the required standards after the issuing of a final written warning, further action should be instigated and the Head of School/Administrative Department in conjunction with the Human Resources Division will arrange a final formal meeting with the employee. Those present at the meeting will include members as specified at 3.4 above. The employee will be advised where dismissal could be a possible outcome of the meetings.

 

3.7 The meeting will consider whether dismissal is a reasonable action and will consider:

  • the facts of the case
  • any review targets set
  • the achievement of improvement standards
  • representations made by the employee or their representative, including any mitigating circumstances.

3.8       The Human Resources Division will confirm the outcome of the meeting in writing and the right of appeal as soon as reasonably practicable. Where dismissal is the outcome the dismissal letter will include the following information:

  • the reasons for dismissal;
  • the date on which the employment will terminate;
  • the right of appeal of the employee concerned.

4.         Appeal

4.1 Any appeal against the procedures or outcomes outlined in points 3 above must be submitted, in writing to the Director of Human Resources within seven working days of receipt of the letter informing the employee of the outcome of the meeting.


4.2 The letter of appeal must state the ground(s) on which the appeal is made. These may include:

  • failure to adhere to the procedure;
  • an inappropriate or inconsistent penalty;
  • extenuating circumstances that were not considered;
  • or new evidence subsequently coming to light which would have affected the decision.


This is not a prescriptive list.

 

4.3 Appeals against an oral warning, a written warning or a final written warning will be heard by a Head of School / Department who has not previously been involved in the case, nominated by the Director of Human Resources.


4.4 Except in the case of dismissal any formal warning issued at the previous meeting will be suspended until the appeal has been heard. If the appeal is unsuccessful the formal warning will be imposed after the appeal.


4.5 If, on appeal, the decision is taken not to dismiss the employee will be reinstated retrospectively. Continuity of employment is preserved and any outstanding salary will be paid.


4.6 Appeals against dismissals will be heard by a Panel, who have not previously been involved in the case, consisting of:

  • A Pro Vice-Chancellor (Chair);
  • An employee senior to the individual being dismissed who does not work in the same School / Department;
  • Director of Human Resources or Nominee;

4.7 The appeal hearing will be serviced by the Human Resources Division and be convened as soon as reasonably practicable. The employee concerned shall be entitled to be represented by a work colleague or recognised local Trade Union representative of their choice not acting in a legal capacity.


4.8 The appeal hearing will consider the grounds of appeal and review the actions taken to date. The case for the University will be presented by the Head of School/Department or their nominee who undertook the formal meeting and the Human Resources Representative who was present.


4.9 The appellant will be informed of the outcome in writing within five working days. The appeal decision will be final and binding.


Appendix 1 – Absence-Related Capability Procedure for staff employed on grades 1-4[2]

1.         Introduction

1.1 Where attendance levels are of concern, as determined in line with Cardiff University’s Sickness Absence Procedure, the Absence-Related Capability Procedure will be invoked to ensure a fair and consistent approach to the management of sickness absence.


1.2 The University recognises that there are many different types of absence which can be generally categorised as short term (i.e. repeated days of full or partial absence, frequent or persistent in nature) or long term (i.e. for continuous periods or periods of time of four working weeks or more).


1.3 These procedures should be followed where:
an employee’s attendance level falls below the University’s agreed standards;
 the pattern or amount or reason for absence(s) gives cause for concern;
 at any time the School/Department are not satisfied with the reasons for absence as notified (if deemed appropriate this may be dealt with in line with the relevant disciplinary procedure).


1.4 These procedures are not to be used in relation to an employee’s failure to comply with the procedural requirements of the sickness absence policy which should be addressed using the University’s relevant disciplinary procedures.


1.5 Where an employee refuses to be referred to the University’s Occupational Health Unit or allow access to their Medical Records under the Data Protection Act 1998 and/or the Access to Medical Reports Act 1988 (as amended), the University reserves the right to make decisions based on the medical evidence available.


1.6 Members of staff absence will be monitored using the University’s Management Standards. Cardiff University uses the Bradford Factor for the management of sickness absence. Further information on the Bradford Factor and its application at Cardiff University is available on the Human Resources website. This may be updated as appropriate.


1.7 Support will be provided to all employees with specific support to those covered by the Equality Act 2010. Support is available, where appropriate, from the Staff Counselling Service, The Occupational Health Unit and Dignity Advisors. Further information in relation to the Equality Act 2010 and reasonable adjustments can be found on the University website http://www.cardiff.ac.uk/humrs/staffinfo/policyprocedures/dda1995.

 

2.         Informal Stage

2.1       The informal procedures for the management of sickness absence are as outlined in the ‘Informal Procedures for Early Management of Sickness Absence’ which forms part of Cardiff University’s Sickness Absence Procedure refer to Appendix 1 of that document.

 

3.         Short Term Absence - Formal Capability Procedure

3.1 Once the informal procedure has been completed as referred to in section 2 above, should the concern identified persist, the Manager will need to consider whether the University’s formal stages should be invoked. The medical advice of the Occupational Health Unit should be taken at this stage if it has not already been sought.


3.2 All Formal Absence Meetings and any formal action will be undertaken in line with Section 3 (Formal Stage) and 4 (Appeal) of the Capability Procedures for staff employed on the terms and conditions of grades 1-4.


3.3 The purpose of the Formal Absence-Related Capability meetings will be to review:

  • the steps taken to date;
  • the patterns and reasons for the absence;
  • any medical evidence;
  • the impact of the absences on the School/Department‘s activities and other employees;
  • the provisions of the Equality Act 2010 and any reasonable adjustments which may need / have been made to the job including the availability of suitable alternative employment;
  • representations made by the employee or their representative, including any mitigating circumstances.the patterns and reasons for the absence;


3.4 Where an underlying medical condition is identified the Head of School / Department must consider, in association with the Human Resources Division and the Occupational Health Unit, what, if any, reasonable adjustments are required.


3.5 Specified management standards in line with the Bradford Factor will be implemented in accordance with the requirements of each case.

3.6 Following implementation of the action plan, if the attendance level continues to give cause for concern, the employee’s attendance may be reviewed immediately under the Formal Capability Procedures and warnings may be issued in accordance with Section 3.3 of the Capability procedure.

 

4.         Long Term Absence – Formal Capability Procedure

4.1 Long term sickness is defined by the University as an absence of four continuous working weeks or more (20 working days).


4.2 Line Managers should normally consider referring the employee to The Occupational Health Unit at week five of the absence (day 21) except where known circumstances make this inappropriate to do so e.g. cases of terminal illness and for standard periods of post operative care etc. A copy of the referral should be sent to the relevant Human Resources Manager. The Management Referral Form is available here: http://www.cardiff.ac.uk/osheu/healthcentre/ochealth/index.html


4.3 The purpose of the medical advice will be to ascertain the expected date, if any, of a return to work and whether the employee will be fit to resume their normal duties or alternative lighter duties on that date.


4.4 The Line Manager or Head of School /Department or nominee will, in conjunction with the medical evidence provided, give consideration to the impact of the absence upon the work area; consideration will be given in particular to:

  • the reason for the absence and the likelihood of return;
  • the impact on the workload of other employees;
  • whether the employee can be temporarily replaced or the work absorbed into another area;
  • the extent to which the School/Department’s activities are being affected by the absence;
  • whether any action is required at this stage.


4.5 At the appropriate time, the Line Manager or Head of School / Department will write to the employee to invite them to a meeting to discuss their absence. The employee will be advised of his/her rights to representation. The meeting will aim to:

  • establish, or review, the length of time the employee is expected to be absent;
  • establish whether or not the University needs to obtain further medical advice in relation to the employee’s condition;
  • consider or review, in light of the medical condition, whether the University should be considering any reasonable adjustment;
  • consider if retirement on the grounds of ill health is a possibility;
  • inform the employee of the interim arrangements that have been put in place to cover the absence;
  • inform the employee that their future with the University is being considered, if appropriate;
  • agree a period of further review where appropriate.


4.6 At this meeting the employee may be accompanied by a work colleague or local Trade Union representative of their choice, not acting in a legal capacity. A member of staff from the Human Resources Division will be available to service the meeting. If appropriate a member of staff from the Occupational Health Unit will also attend the meeting.


4.7 Following the meeting, the employee should be given a reasonable opportunity to come up with any further proposals or suggestions.


4.8 The Head of School / Department will then decide whether formal action is necessary. If, after full exploration and consultation, there are no reasonable adjustments that can be made to enable the employee to return to work within a reasonable time frame, dismissal may be contemplated. If the decision is that formal action is necessary, a formal review will be undertaken in accordance with the following arrangements.


4.9 The Head of School/Department will write to the employee to arrange a further meeting. This letter should point out that one of a range of options available to the School/Department is termination of the employee's employment on the grounds of long-term incapacity.


4.10 At this meeting the employee may be accompanied by a work colleague or Local Trade Union representative of their choice, not acting in a legal capacity. A member of staff from Human Resources will be available to service the meeting. At the meeting, the employee will be given full opportunity to comment on the dismissal proposal.


4.11 In reaching a decision on whether or not to terminate the employee's employment, the School/Department will carefully consider:

  • the length of the employee's employment;
  • the employee's past sickness record;
  • the nature, effect and anticipated length of the employee's illness;
  • whether or not it is envisaged that the employee may return to work and, if it is, when;
  • the nature of the employee's job;
  • the reasonable adjustments that could be made to accommodate the employee;
  • whether or not the employee could undertake alternative work;
  • whether or not the employee's work could continue to be done by a replacement in the meantime; and
  • the effect of the employee's absence on other employees and on the business.


4.12 If, taking into account all the circumstances of the case, termination of employment appears to be a fair and reasonable option, a dismissal by reason of capability will be effected with notice or pay in lieu of notice and should be confirmed in writing.


4.13 Where the employee appeals against a dismissal decision the University will invite the employee to attend a further meeting to determine the appeal, and after the meeting inform the employee of its final decision.


4.14 Any Appeal against the outcome above will be as outlined in Section 4 of the Formal Capability Procedure.



[1] This also includes Knowledge Transfer Partnerships (KTP Associates) and all other staff employed on Terms and Conditions of Grades 1-4.

[2]  This also includes KTP Associates and all other staff employed on Terms and Conditions of Grades 1-4.