NHS 'Once for Scotland' workforce policies: consultation on core policies

3. Capability

3.1 Aim
3.1.1 To provide a clear process to support and manage employees, in a fair, consistent and timely manner when they are required to improve their knowledge, skill and/or ability to undertake their role.

3.2 Scope
3.2.1 This policy applies to all employees and workers such as bank, agency and sessional workers. It does not apply for matters concerning the professional competence of medical and dental staff.

3.2.2 It relates to concerns regarding an employee's knowledge, skills or ability to perform their role. This may arise from complaints or criticisms of the employee's work from colleagues, patients or visitors, factual evidence, the manager's own observations or the employee asking for help to overcome the problem. It also relates to ill health which impacts on performance.

3.2.3 Concerns relating to regulatory standards can only be determined by the relevant regulator <Link to Guide to Referral to External Agencies>. The employer may be unable to determine the outcome of a capability process in advance of the regulator concluding the referral. Where the concern applies to both the regulatory body and the contract of employment, the employer may determine an outcome based on the contract of employment.

3.2.4 This policy will also be used to consider cases of employees' loss of registration, or other required qualifications such as a driving licence, where this is not considered a conduct matter or relates to matters out with the employer's scope to investigate. This would not apply to lapses of registration which will be covered by existing policies. <Link to Safer Pre and Post Employment checks PIN>.

3.3 Definitions
3.3.1 Capability – the knowledge, skill or ability required to carry out the required duties of the role to an acceptable standard.

3.3.2 Supported Improvement Plan - A document which outlines areas for improvement with agreed timescales and support to achieve the required standard of performance.

3.4 Roles and Responsibilities
3.4.1 Line Manager

• Communicate with the employee to ensure they are aware of the performance standards expected of them in their role;
• Assess the seriousness of the capability issue and determine whether the matter can be addressed under early resolution;
• Monitor employee performance on an ongoing basis;
• Effectively support the appropriate personal development planning and review/appraisal process in respect of such employees to ensure that performance standards are met;
• Ensure that good performance, and special effort by individuals and teams, is acknowledged, encouraged and reinforced.

3.4.2 Employee

• Be aware of the standards of performance expected of them, and discuss with their line manager if unclear;
• Actively participate in the process in an attempt to address the issue without delay;
• Try, to the best of their ability, to meet the expected standards and raise at the earliest opportunity if they are having difficulties meeting the expected standards of performance;
• Work with managers on any agreed supported improvement plan;
• Comply with any support/monitoring mechanisms put in place; and
• Raise concerns with the appropriate manager where they perceive others not to be performing to the expected standards.

3.4.3 Occupational Health
In cases where the performance issues are related to health

• Provide expert, impartial and timely advice in relation to how an employee's health issues impact on their performance at work.
• Consider information provided from a variety of sources e.g. GP's, other agencies, job role to make sure that all relevant information is available concerning an employee's circumstances to advise managers accordingly.
• Advise on whether an employee may be considered as having a disability under the Equality Act 2010.

3.4.4 Whether suitable alternative employment should be considered and, if so, any restrictions as to the type of role or reasonable adjustments to ensure suitability.

3.4.5 Anyone involved in the process is required to maintain confidentiality throughout the process.

3.4.6 There are a range of standard expectations on all parties and on HR, Trade Union representatives and Occupational Health which underpin all policies <Link to standard roles and responsibilities>.

3.5 Procedure
3.5.1 Initial Assessment
It may be necessary, due to the nature of the issues of concern, to remove an employee from certain duties or to put in place additional supervision in order to mitigate risk. In exceptional circumstances it may be necessary to place an employee on a short period of paid leave until such times as a supported improvement plan can be agreed and implemented.

3.5.2 The expectation is that in the majority of cases, the employee would progress through each stage of the process. However there will be exceptional circumstances where due to the nature of the capability issue and/or the seriousness of the performance deficiency, that it is deemed necessary to move straight to a more appropriate stage of the formal procedure. Matters should not however, be progressed to the formal stages if it is established that the employee has not had the necessary training, guidance and support required to undertake the job.

3.5.2.1 In capability cases involving Workers <link to scope definition of Worker>, consideration should be given to whether a supported improvement approach is possible and appropriate. Where this is not possible the case should be progressed to Stage 3 of the process.

3.5.3 Early Resolution
3.5.3.1 The route for capability is shown in flowchart <insert link to flowchart> and outlines the procedure through both the early resolution and formal stages.

3.5.3.2 Managers and employees are encouraged to deal with performance concerns with early resolution in the first instance. In many instances, conversations between the manager and an employee will be sufficient to ensure that performance improves.

3.5.3.3 However a formal approach will be appropriate where the early resolution has not led to the necessary improvement in performance. In more serious cases, a formal approach may need to be adopted from the outset.

3.5.3.4 The manager is expected to take action in a prompt and timely manner when the issue is initially raised.

3.5.4 Initial Meeting
3.5.4.1 The aim of the initial meeting is to have a two way open and honest discussion to seek ways to achieve the required improvements.

3.5.4.2 Employees must be encouraged to describe the situation from their perspective. It is crucial that as many aspects of the problem as possible, as perceived by the employee and the manager, are established.

3.5.4.3 Both managers and employees are responsible for ensuring that such discussions take place promptly when issues arise and that they are managed confidentially. A supported improvement plan should be completed and updated at each stage of the process<Link to Supported Improvement Plan>.

3.5.4.4 The timescales for any follow up/review meetings will be by agreement by both parties.

3.4.3.5 There may be circumstances where it is unclear what the causes of the performance issue are or whether it is a conduct matter and an investigation is required <Link to Workforce Policies Investigation Process>. If so, this must be in advance of any formal process.

3.5.5 Review Meeting(s)
3.5.5.1 The follow up/final review meeting(s) will involve the manager meeting with the employee and reviewing any supported improvement plan and timescales.

3.5.5.2 Consideration will be given to any further support or training that would be required to meet the performance standards.

3.5.5.3 At the end of the agreed timescales, if the required performance standard has been met, the manager will confirm that no further action will be taken. Where the required improvements are not met, the manager will advise the employee that the formal procedure will be initiated.

3.5.5.4 The outcome of these meeting will be confirmed by the manager in writing to the employee within 7 calendar days. <Link to standard letter>.

3.5.6 Formal Procedure
3.5.6.1 Where early resolution has not been successful or in more serious cases, a more formal approach will be initiated.

3.5.7 Stage 1
3.5.7.1 A formal Stage 1 meeting will be arranged, comprising of the employee's manager, an HR representative, the employee and their representative (if known).

3.5.8 Process
3.5.8.1 The manager will be responsible for writing to the employee and their representative, no later than 14 calendar days in advance of the meeting proving all relevant supporting documentation from the early resolution stage. <Link to standard letter>.

3.5.8.2 The purpose of the meeting at Stage 1 will be to discuss and agree the following:-

• The nature, extent and supporting evidence of the performance concerns and whether the employee accepts that there is a problem;
• Possible contributing factors;
• A review of action taken to date;
• Possible solutions;
• The supported improvement plan;
• The date on which the employee's performance will be reviewed again; and
• Action which may follow if the required improvement in performance is not achieved and maintained.

3.5.9 Outcome
3.5.9.1 The outcome of the meeting will be confirmed in writing to the employee within 7 calendar days. <Link to standard letter>.

3.5.9.2 The manager will thereafter continue to be responsible for implementation of the agreed supported improvement plan and ensuring regular interim reviews, prior to the Final Review meeting being convened to examine progress to date and the appropriate next steps.

3.5.10 Final Review Meeting
3.5.10.1 The manager will be responsible for writing to the employee and their representative, no later than 14 calendar days in advance of the meeting providing all relevant supporting documentation from Stage 1.

3.5.10.2 The outcome of the reconvened meeting will fall into one of the following categories:-

• The employee has met the required performance standards set and no further action will be taken;
• The employee has not met the performance standards set due to extenuating circumstances and improved performance is anticipated or would be achieved through the introduction of further support measures not previously identified, and the review period is extended;
• The employee has not met the performance standards set, therefore the matter is progressed to Stage 2.

3.5.10.3 At the final review meeting the outcome and next steps will be discussed. Where the required improvement has not been achieved during the agreed timescale and the line manager has concluded that there is a need to progress to the next stage, the evidence and rationale for this decision will be discussed with the employee.

3.5.10.4 The outcome of the final review meeting will be confirmed to the employee in writing within 7 calendar days, informing of the right of appeal. <Link to standard letter>.

3.5.11 Stage 2
3.5.11.1 A formal Stage 2 meeting will be arranged comprising a Chair who has had no previous involvement, the manager, the HR representative the employee and their representative.

3.5.12 Process
3.5.12.1 The Chair will be responsible for writing to the employee, their representative and the employee's manager, no later than 14 calendar days in advance of the meeting providing all relevant documentation from Stage 1.

3.5.12.2 The format of the meeting will be as at Stage 1, with the support measures previously identified being reviewed and discussion as to whether they should continue or if additional support measures may be helpful.

3.5.12.3 However, at Stage 2 it may be appropriate to discuss other options, for example career counselling or permanent redeployment if possible and/or appropriate and agreeable to the employee.

3.5.12.4 In the case of redeployment, the Redeployment Policy will apply. Redeployment should only be considered where there is a likelihood of a suitable alternative role where the employee can meet the performance requirements arising within a reasonable time period. Redeployment to another post will only be an option where such a post exists.

3.5.13 Outcome
3.5.13.1 The outcome must be confirmed by the Chair in writing to the employee within 7 calendar days. <Link to standard letter>.

3.5.13.2 Where the outcome of the meeting is to continue to utilise a supported improvement plan, the letter will be as per Stage 1, but will additionally note that, should the necessary improvement not be achieved, the matter may be escalated to Stage 3. This may result in consideration being given to redeployment, or if not appropriate, termination of contract on grounds of capability.

3.5.13.3 Where the outcome of the meeting is to pursue redeployment, this should be confirmed in writing to the employee and their representative, advising that if suitable alternative employment is not secured within an agreed timescale, the matter will be escalated to Stage 3, which may result in consideration of termination of contract on grounds of capability.

3.5.13.4 The employee's manager will thereafter be responsible for implementation of the agreed supported improvement plan, and ensuring regular interim reviews, prior to the Final Review meeting being convened.

3.5.14 Final Review Meeting
3.5.14.1 The Chair at Stage 2 will be responsible for writing to the employee, their representative and the employee's manager, no later than 14 calendar days in advance of the meeting and providing all relevant documentation from Stage 2.

3.5.14.2 The outcome of the convened meeting will fall into one of the following categories:-

• The employee has met the required performance standards set or has secured redeployment and no further action will be taken;
• The employee has not met the performance standards set due to extenuating circumstances and improved performance is anticipated or would be achieved through the introduction of further support measures not previously identified, and the review period is extended;
• The employee has not met the performance standards set, therefore the matter is progressed to Stage 3;
• The employee has been unsuccessful in securing suitable alternative employment through the Redeployment Process, therefore the matter is now being progressed to Stage 3.

3.5.14.3 At the final review meeting the outcome and next steps will be discussed. Where the required improvement has not been achieved during the agreed timescale and the Chair has concluded that there is a need to progress to the next stage, the evidence and rationale for this decision will be discussed with the employee.

3.5.14.4 The outcome of the final review meeting will be confirmed to the employee in writing within 7 calendar days informing of the right of appeal. <Link to standard letter>.

3.5.15 Stage 3
3.5.15.1 If despite all the measures outlined above, the desired improvement has still not been achieved (or redeployment has already been exhausted or dismissed by one of the parties as a reasonable option), a Stage 3 hearing will be convened by a manager with the authority to dismiss, upon being advised that the matter is being escalated to this stage of the process.

3.5.15.2 The Formal Stage 3 hearing will comprise of a new Chair, according to the scheme of delegation and two other panel members one of whom will be an HR representative. All panel members will have had no prior involvement in the case.

3.5.16 Process
3.5.16.1 The new Chair will be responsible for writing to the employee, their representative and the Chair from Stage 2, no later than 14 calendar days in advance of the hearing, providing all relevant documentation from Stage 2. Should the employee wish to provide a written statement of case, this should be submitted no later than 7 calendar days in advance of the hearing.

3.5.16.2 Persons in attendance may include:-

• The employee
• Accredited Trade Union Representative and/or work colleague not acting in a legal capacity
• The Chair of Stage 2
• HR support to the Chair at Stage 2

3.5.16.3 Any witnesses called by either party who will have the right to be accompanied. Witnesses will only be present when giving their own evidence. It is anticipated that the employee's manager will attend as a witness for the management case.

3.5.16.4 The purpose of the Hearing will be to discuss the following:-

• The nature, extent and evidence of the performance concerns and whether such concerns are well-founded;
• Possible contributing factors;
• What action has been taken by the manager and the individual with regard to the agreed supported improvement plan; and
• Whether there are any further considerations not previously explored which might result in the required improvement being achieved and an extension is appropriate.
• Clear consideration of the employer's duties under the Equality Act 2010 with regard to employees who may be considered to have a disability.

3.5.17 Outcome
3.5.17.1 The outcome will be confirmed by the Chair in writing to the employee within 7 calendar days, informing of the right of appeal.

3.5.17.2 Potential outcomes at Stage 3 are:-

• It is considered that the employee will be able to achieve and maintain the required standard of performance within their current role within a reasonable period of time. In which case a supported improvement plan should be agreed and implemented as per the earlier stages, with the Stage 3 Hearing being adjourned until an agreed date for review <Link to standard letter>.;
• Where it is considered that such improvement is not likely to be achieved and maintained, it may be considered that permanent redeployment (at the same or lower pay level) would be appropriate. Redeployment should only be considered where there is a likelihood of a suitable alternative role <Link to standard letter>. Redeployment to another post will only be an option where such a post exists. If such a decision is reached, the provisions of the Redeployment Policy should be used, with the Stage 3 Hearing being reconvened should there be a failure to secure suitable alternative employment within a reasonable timescale <Link to standard letter>.; or
• It may be that, having considered both of the above options, termination of contract on the grounds of capability is the only remaining option <Link to standard letter>.

3.5.17.3 In capability cases involving Workers <link to scope definition of Worker>, if the required standard of performance is not met and continued engagement with the organisation is not appropriate the individual will be offered no further shifts / work.

3.5.18 Appeal Hearing Process
3.5.18.1 Guidance on Appeal Hearings can be found at < Link to guidance>.

3.5.18.2 All employees have a right to appeal against any decision taken during the formal review meetings. When exercising this right the employee must specify the reason for their appeal.

3.5.18.3 The appeal panel Chair, in accordance with the scheme of delegation, will be responsible for identifying membership of the appeal hearing panel.

3.5.18.4 The Chair will also be responsible for ensuring that the panel, employee and their representative are advised in writing of the arrangements, no later than 14 calendar days prior to the hearing. <Link to standard letter>.

3.5.18.5 The employee and Chair of relevant stage, are required to provide a written statement of their case. These should be submitted no later than 7 calendar days before the hearing and will be shared with all parties.

3.5.18.6 It is the responsibility of the party calling any witnesses to inform them of the arrangements for the appeal hearing.

3.5.19 Outcome
3.5.19.1 Following the hearing the Chair will write with the outcome of the appeal hearing to the employee and their representative. This will include the rationale behind any decisions taken in response to the employee's grounds for appeal. The letter will be issued within 7 calendar days following the appeal hearing.

3.5.19.2 The outcome of the appeal will be final, with no further internal right of recourse.

3.5.20 Grievances/Bullying and Harassment Complaints
3.5.20.1 Where an employee raises a grievance or bullying and complaint during implementation of the formal capability process, the capability process may be temporarily suspended in order to deal with the grievance/complaint. Where the grievance/complaint and capability case are related, however, it may be appropriate to deal with both issues concurrently.

3.6 Supporting Documentation

• Flowcharts – there will be two/three flowcharts which show visually the key steps in the process at each stage when concerns have been raised about capability.
• Standard letters – standard letters will be developed to ensure all the required content is included in letters for each stage of the process including invite/ review/outcome and appeal letters.
• Supported Improvement Plans – an updated template will be developed to support all stages of the process which ensures clarity of the concerns and timescales for improvement. Examples of a completed plan will also be incorporated.
• Guide for Managers – more detailed guidance to support managers through the process with good practice highlighted.
• Guide for Employees – more detailed guidance for staff to support them through the process.
• Guide to Supportive and/or difficult conversations – guidance for managers and staff in how to have more honest conversations with a view to providing support and improvement.

3.7 Consultation Questions

Capability: Section 3
(7 Questions)

Question 1:
Is the policy easy to read and clear to all parties?

Yes
No

Question 2:
Is the policy fit for purpose?

Yes
No

Question 3:
Does the language reflect our vision for policies to be user-friendly and supportive reflecting NHSScotland core values?

Yes
No

Question 4:
Are there any additions required to the supporting documents listed?

Yes
No

If yes, please specify

Question 5:
Does the addition of the process for addressing loss of registration cover a current gap?

Yes
No

Question 6:
Where redeployment is the outcome at Stage 3, should notice of termination run concurrently with the 12 week redeployment period?

Yes
No

Please indicate the reason for your response

Question 7:
Please provide any other comments you have in relation to the policy.