Employee capability: NHSScotland PIN policy

1 Introduction

1.1 The purpose of this Partnership Information Network (PIN) policy on the management of employee capability is to set a minimum standard and to provide a model of current best practice which can be developed in partnership at a local level to create policies to support the management of issues in relation to employee capability. Such local policies should be developed and agreed by the appropriate partnership forum and jointly reviewed on a regular basis. Alternative approaches are not precluded provided that they are based upon the best practice principles outlined in this policy. The ultimate decision about a Board’s approach must be developed in a fully inclusive manner to ensure that the required changes in organisational culture, behaviour and attitude are achieved. (In addition to the model policy provided, best practice guidance for those undertaking investigations or chairing formal meetings/appeals, while detailed in the appendices of the Management of Employee Conduct PIN Policy⁶ , is equally relevant in relation to issues of capability.)

1.2 Employees are required to perform the duties of their post to an acceptable standard. Where this standard is not met, employees will be offered support, encouragement, guidance and, if necessary, training to improve their work performance.

1.3 Nothing within this PIN policy is intended to prevent the normal process of supervisory control whereby managers allocate work, monitor performance, draw attention to errors and poor quality and, as importantly, highlight work done well. This ongoing process may include informal assistance in achieving improvement to the required standard of work for the particular post. Such discussions are not part of the formal procedure outlined in this PIN policy, with formal interviews and representation not being appropriate to this everyday ongoing process.

1.4 This PIN policy provides the broad principles to enable the management of capability issues by managers and trade unions/professional organisations working together at all levels to seek resolutions. It is designed to promote fairness and consistency in the treatment of all employees, in compliance with Boards’ obligations under the NHSScotland Staff Governance Standard⁷.

1.5 This PIN policy is also designed to clarify the rights and responsibilities of Boards, managers, employees and trade unions/professional organisations in respect of employees who require to be managed regarding capability issues relating to their employment.

1.6 This PIN policy applies in the case of issues of capability (i.e. where the employee is lacking in some area of knowledge, skill or ability, resulting in a failure to be able to carry out the required duties of the post to an acceptable standard). It does not apply in the case of issues of conduct, which are separately covered under the Management of Employee Conduct PIN Policy⁸. A distinction must be drawn between a genuine lack of capability and unsatisfactory performance that is attributable to a wilful refusal on the part of the employee to perform to the standards of which they are capable. This would be a question of “won’t do” rather than “can’t do” and, as a matter of conduct, should be dealt with under Boards’ local policies developed in line with the Management of Employee Conduct PIN Policy.

1.7 However, it is recognised that it may not be clear at the outset whether a matter is one of conduct or capability, and therefore it may be that the approach to be followed requires to be changed in the course of managing such matters.

1.8 This PIN policy does not apply in the case of issues of capability related to ill health impacting on attendance, which are separately covered under the Managing Health at Work PIN Policy⁹. It does, however, apply in the case of issues of capability related to ill health where such issues impact upon performance (as opposed to attendance).

1.9 Other local policies may be relevant, for example in the case of misconduct as described above, or Boards’ local policies developed in line with the Preventing and Dealing with Bullying and Harassment in NHSScotland PIN Policy¹⁰ (if capability issues are found to be connected to bullying/harassment in the workplace).

1.10 This PIN policy does not apply in the case of employees who are unable to undertake their contracted role as a result of the following:

• Loss of eligibility to work in the UK;
• Disqualification from driving as a result of a driving offence;
• Criminal convictions;
• Barring from undertaking regulated work; or
• Loss/suspension of professional registration.

While this PIN policy would apply separately in the case of any associated capability issues, decisions specifically in relation to those areas identified above would not be made on the basis of capability (or conduct), but rather on the basis of ‘some other substantial reason’. The procedure to be followed, therefore, in the case of the latter, (where dismissal has not already previously resulted in relation to any associated capability issues) is as set out within the Safer Pre and Post Employment Checks PIN Policy¹¹.

1.11 This PIN policy applies to all directly employed staff, including bank/temporary staff and NHSScotland staff on secondment. It does not apply to matters concerning the professional competence of medical and dental staff, which are covered by national agreements as set out in section 10.1.1 and 10.4.1 of the 2004 Terms and Conditions of Service for Consultants¹² , or for other grades as set out in the following circulars: NHS Circular 1990 (PCS)8¹³ , as amended by NHS Circular 1990 (PCS)32¹⁴ , PCS(DD)1994/11¹⁵ , PCS(DD)1999/7¹⁶ , PCS(DD)2001/09¹⁷ and MEL 1993/149 (Annex B - Paragraph 9)¹⁸. In the case of doctors in training, Boards should also refer to the NHS Education for Scotland Doctors in Difficulty Policy¹⁹.

1.12 In the case of capability or conduct issues relating to staff groups who require to be professionally registered, Boards will have in place mechanisms to ensure that relevant statutory regulatory bodies are informed, as appropriate, where such issues arise. Decisions in relation to ongoing professional registration as a result of such issues will be for the relevant statutory regulatory body to determine. However, Boards’ local policies developed in line with this PIN policy (or the Management of Employee Conduct PIN Policy) will apply in relation to those capability (or conduct) issues in so far as they relate to an individual’s employment within a Board.

1.13 The NHSScotland Code of Conduct for Healthcare Support Workers details the mandatory standards for how Healthcare Support Workers should work on a day-to-day basis and the Code of Practice for Employers of Healthcare Support Workers sets out standards for Boards based on existing good employer practice. Under the terms of CEL 23 (2010)²⁰ and any future Directions incorporating amendments to it, all employed or engaged Healthcare Support Workers (as defined by the CEL) should be treated fairly and consistently by Boards with regard to performance and capability matters covered by the Code of Conduct. All Healthcare Support Workers must comply with the Code of Conduct and Boards must comply with the Code of Practice. Boards must not continue to employ a Healthcare Support Worker who continually fails to comply with the Code of Conduct despite adequate training and support. Boards’ local policies developed in line with this PIN policy should be applied in such cases, where such a failure to comply is identified as a matter of capability. Where such a failure to comply is identified as a matter of conduct, Boards’ local policies developed in line with the Management of Employee Conduct PIN Policy will apply.

1.14 This PIN policy complements the ‘ACAS Code of Practice - Disciplinary and Grievance Procedures’²¹ as revised on 6th April 2009.