Performance capability management policy and procedure

1 Introduction

As a provider of healthcare services, the trust is obliged to ensure the provision of high-quality services to our clients, patients, and service users; therefore, we have an ongoing responsibility to ensure that work performance is both to a high standard and in accordance with our values. All employees have a responsibility to achieve a satisfactory level of performance and carry out their duties to the standard required.

The trust is committed to supporting and developing its employees in a fair and equitable manner to ensure that they can fulfil their roles and responsibilities to a high standard of competence.

Through the trust’s recruitment procedures, every effort is made to ensure that new employees have the appropriate skills and abilities, or a clear, demonstrated potential to achieve these, for the roles to which they are recruited. At the start of employment with the trust, on promotion or redeployment, employees should be clearly informed of their responsibilities and the standards of work performance required which are relevant to their post. It is expected that the trust will provide such support, training, induction, and guidance as necessary in order to support those employees in fulfilling the role and developing their skills and knowledge.

Where these standards are not met, employees will be offered support, encouragement, guidance and, if necessary, retraining with effective, regular, and constructive feedback relating to their work performance. Managers are responsible for ensuring that performance issues are addressed promptly and fairly.

Although this policy sets out the process and procedures to follow in cases of incapability and performance issues, each case would need to be considered individually and the approach determined to reflect those needs.

It is the intention of this policy and procedure to ensure that there is a fair and consistent approach to managing performance across the organisation. This policy should be regarded as one of mutual and joint working, which enables the employee to maintain their performance or to restore their standards of performance to an acceptable level.

2 Purpose

The intention of this policy is to assist managers in supporting employees to maintain expected levels of performance and addressing appropriately any performance issues of their employees.

The policy requires managers to:

ensure that arrangements are in place to provide employees with clear expectations about their role and to support them appropriately
ensure that arrangements for regular dialogue and feedback between managers, supervisors and their employees are in place, that incorporates the trust’s established performance development review process
support and encourage employees to overcome poor performance and to be safe and effective in their practice, irrespective of their occupation. Resolve concerns as close to their point of origin and as soon as reasonably practical after they have been identified
recognise that the implementation of formal action within this policy or procedure is concerned with setting and monitoring of organisational standards and expectations of the employee and setting reasonable expectations within a realistic time frame
adopt a problem-solving approach, attempting wherever possible to avoid issues escalating to a point where formal action is unavoidable
ensure that the procedure is applied in a reasonable, fair and consistent way

3 Scope

This policy applies to all employees who are directly employed by RDaSH and for whom the organisation has legal responsibility. For medical employees, this policy should be read in conjunction with maintaining high professional standards (which is available online) as adopted by the trust.

Where an issue is raised involving a seconded employee from another organisation, the People Experience team will liaise with the human resources department of the other organisation involved, to agree a way forward, in accordance with the policy framework of each organisation.

This policy promotes a fair and consistent approach in accordance with equality and diversity legislation and the trust’s values. In cases of incapability due to ill health, referral should be made to the trust’s sickness absence policy.

This policy is designed to deal with those cases where the employee is lacking in some area of knowledge, skill or ability, resulting in a failure to be able to carry out their required duties and responsibilities to an acceptable standard. It is to be used where there is a genuine lack of capability, rather than a deliberate failure on the part of the employee to perform to the standards of which they are capable. Where there is deliberate inaction or negligence on the part of the employee, the trust’s disciplinary policy will be followed. If during the capability process it becomes apparent that the concerns in question would be more appropriately addressed under a different policy (for example, disciplinary) this should be discussed with the People Experience team

In line with the pay progression framework, pay progression for all pay points within each pay band will be conditional upon individuals demonstrating that they have the requisite knowledge and skills or competencies for their role and that they have demonstrated the required level of performance and delivery during the review period

4 Responsibilities, accountabilities and duties

4.1. Board of directors

The board of directors are accountable for the overall wellbeing and performance of employees of the trust whilst at work and to ensure the delivery of safe performance within the organisation.
The director of people and organisational development has responsibility for the implementation of this policy and coordination of an appropriate communication strategy, together with ensuring that appropriate monitoring arrangements are in place.
It is the duty of the board of directors to gain assurances from the directorates or business divisions that this policy is being implemented appropriately to balance the needs of the employees with the needs of the organisation and its services.

4.2 Line managers and appointing officers

It is the responsibility of the line manager and appointing officer to:

implement this policy and procedure as appropriate, in accordance with the guiding principles outlined to enable safe and effective performance
effectively communicate the standards and speed at which work should be completed and the attitude and behaviour expected in performing these tasks

It is important that managers set out the required standards of performance as part of the workplace induction process and fully explain the duties and responsibilities in the employee’s job description.

Line managers will ensure (for employees they manage) that:

the employee receives an effective corporate induction into the trust
employees have the training and support necessary for them to satisfactorily carry out the requirements of their job and receive appropriate advice, guidance, and on-going supervision
that the work content is appropriate to the banding of the job and that the volume of work is reasonable considering the employees contracted hours
that the expectation of work performance is realistic, and the employee has the resources available to allow them to fulfil their job role effectively
they hold regular (6-8 weeks) management supervision and where appropriate clinical supervision
they conduct yearly performance development review (PDR’s) to ensure that employees have clear agreed objectives
objectives are set which are SMART (specific, measurable, achievable, relevant, and time-bound)
any concerns about the employees work performance are raised in a confidential, supportive, and timely manner
where an employee has informed their line manager of any change to their personal circumstances or health that may impact on their performance, the manager works with the employee to ascertain whether any workplace adjustments in line with the Equality Act 2010 need to be made to support the employee in maintaining their performance standards
promote the value of one-to-one supervision and team meetings, as appropriate
ensure awareness of this policy and procedure
implement this policy fairly, consistently, and supportively
advocate, wherever possible, an ‘open door’ policy
managers will adopt a reflective and learning practice to improve and develop their own leadership practice
managers will actively coach and mentor their own team members who are involved in managing others

4.3 Employees

It is the responsibility of each employee to:

actively participate in the performance management processes outlined in this policy and procedure
attain and maintain continued professional development, academic and practical based qualifications and where necessary undertake clinical supervision as required to perform their duties as identified in their job description
take personal responsibility for proactively maintaining expected levels of performance and notify the line manager of any issues which may impact on continued performance
meet their contractual obligations
attend and participate fully in all meetings associated with their capability
contribute to the development of a relevant improvement plan to support and improve their performance, requesting clarification if any aspect is unclear
raise any work-related concerns they have with their line manager
if they are unsure of a particular aspect of their role and or have concerns about a particular task, make their line manager aware of any change in their personal circumstances or their health that may impact on their performance so that the necessary support can be provided
engage fully with all aspects of performance management including supervision and personal development plans
employees who hold professional registration must maintain the level of knowledge and standard of performance required by their code of practice

4.4 People Experience team

It is the responsibility of the People Experience team to:

advise line managers and supervisors on the application of this policy and the linkages to the personal responsibility framework principles and the disciplinary policy as appropriate
assist in the identification of relevant training and development opportunities
assist with the development of performance action plans
ensure line managers and supervisors are reminded of, and implement, relevant policies and procedures to support employees with issues which impact on their performance at work
assist managers in utilising the tools available within other policies and procedures to support employees at work in accordance with good practice and any associated employment legislation

It is the responsibility of staff side to assist and guide employees with the application of the policy.

5 Procedure and implementation

5.1 General principles

Effective performance can only be achieved through the capability and willingness of employees to perform and with the support and guidance of their line manager. There are a range of actions that should be taken to ensure that employees are fully supported to perform effectively and to develop within the organisation. These actions are outlined in the following paragraphs.

The trust is responsible for setting realistic and achievable standards and making sure employees understand what is required of them. Employees have a contractual responsibility to achieve a satisfactory level of performance and should be given help and encouragement to reach it.

Standards should be measurable in terms of quality, quantity, time and if appropriate, cost effectiveness. Any shortfall in performance should be highlighted to the employee concerned, and consideration given as to whether this is due to inadequate instruction, training, supervision, or some other failing.

5.2 Managing performance positively and reducing the risk of poor performance

There may be occasions where a line manager must speak to an employee regarding their performance or standard of work, however, where these incidents are isolated; it does not necessarily constitute poor performance. Line managers should keep a record of any issues that are raised to ensure that this information can be used to support any further action that is considered necessary. Where such concerns become more frequent or more significant and it becomes apparent there is a poor performance issue, there is a basic process which the line manager should undertake. The process outlines the action to be taken by the line manager irrespective of whether the manager or supervisor is undertaking the process in “counselling” mode or in “formal action” mode

This process is summarised in appendix A, managing performance positively.

5.2.1 Recruitment

The importance of careful recruitment, selection and training should not be underestimated as this will facilitate a reduced risk of unsatisfactory performance. The first step in ensuring an employee can perform to a satisfactory level begins at the recruitment stage. Only those applicants who meet the essential criteria necessary for the role should move forward to the interview stage. The interview provides an ideal opportunity to test out the knowledge and skills of the candidate to ensure that the most suitable candidate is appointed.

The new recruit should be issued with a contract of employment which confirms that the first 6 months of employment will be a probationary period where they will be required to demonstrate capability or suitability in the position for which they are employed

On commencement of employment the new recruit should be fully aware of the duties of the post and the general expectations associated with it and receive an induction appropriate for the role.

For further information refer to the appointment of employees and induction policies.

5.2.2 Job related training

New employees will need a period of on-the-job training and will be required to undertake mandatory and statutory training, as well as any other training deemed appropriate for the role they are employed to carry out.

It is equally important that existing employees maintain their mandatory and statutory training as well as identifying any additional training that will support them in their role. In addition, failure to maintain mandatory and statutory training compliance may impact on pay-step progression in accordance with the trust’s pay progression procedure.

The responsibility for continuing professional development is a joint responsibility both in terms of identifying training needs and sourcing the relevant training or development activity. Line managers should ensure that they are following the personal development review (PDR) or personal development plan (PDP) process and the policy for corporate and local service induction policy.

5.2.3 Supervision or one to one meeting

It is the responsibility of the line manager to ensure that regular supervision, clinical or non-clinical is arranged for all employees and that it is timely and effective.

It is recommended that the line manager and the employee meet as a minimum every 6 to 8 weeks, one-to-one as detailed in the supervision policy.

This allows for areas to be discussed at the earliest opportunity which can prevent issues affecting an employee’s performance at work and to provide praise to employees for areas where they have performed well.

The one-to-one meeting should focus on issues around workload, priorities, forthcoming work, progress with current workload and performance against objectives. Again, any issues or problems, training needs or difficulties can then be identified, and the relevant support put in place to prevent escalation of problems.

Where problems with performance become evident this should be raised initially with the individual in the one to one meeting.

Detailed notes should be taken of the one-to-one meeting and any actions agreed made clear. The views of both parties should be captured, and it is recommended that one to one notes are signed by the line manager and employee.

A template for the suggested format of a one-to-one meeting can be found in the supervision policy.

This supervision may or may not be carried out by the immediate line manager but could be from a variety of sources. It is for the employee and the line manager to agree the form that supervision will take.

In addition, some employees may have access to daily supervision however, for others who may work on a more autonomous basis, peer support and access to more senior support will be available as and when required.

5.2.4 Team meetings

Each team, (department, directorate or unit as appropriate) should have regular meetings, at least on a bi-monthly basis. The team meeting does not replace a one-to-one meeting as its content is purely work focused and will cover general work issues. Team meetings are the ideal forum for line managers to cascade organisational issues, provide feedback from relevant trust meetings and raise awareness of the wider NHS agenda.

Whilst some of the information may not be directly relevant to the team it ensures that the channels of communication are open to all employees who then feel they are kept informed about what is happening within the organisation and can understand how their contribution fits in. Team meetings also provide an opportunity for employees to raise any work-related issues jointly that they may not feel comfortable doing on a one-to-one basis.

Line managers should communicate clear and consistent information to all members of the team, participate in the discussions and deal with any queries in a timely manner.

5.2.5 Personal development review (PDR) and personal development plan (PDP)

The PDR process is a formal, annual, meeting (which is usually held face to face or on Microsoft teams if necessary) between the line manager and the employee. The purpose of the PDR is for the line manager to acknowledge the success and progress of the employee, discuss any areas of concern or areas for improvement and to confirm that the employee’s job description is up to date.

There will be a review of performance against the last set of objectives set for all employees. The employee will have the opportunity to feedback any concerns or issues on the way they are being managed, feedback any concerns or issues relating to the trust as a whole and to share ideas and talk openly about their role and their performance.

The meeting is designed to be structured, consistent and documented. There should be no surprises for either the employee or the Line Manager; however, this strongly relies upon ensuring that the regular one to one meeting are in place.

At the end of the PDR or shortly afterwards the line manager and the employee will agree objectives for the forthcoming year and identify any training or development needs they have and as such put together a PDP. (refer to personal development review (PDR) policy or more information).

In addition, failure to undertake and complete an annual PDR may impact on incremental pay-step progression in accordance with the trusts pay progression procedure.

5.2.6 Support for colleagues

The trust recognises that being the subject of an informal or formal capability process may be difficult for staff and there are services available which staff are able to access.

Support for staff page can be accessed via the employee assistance programme on the trust’s intranet home page. This page provides advice and information to staff as well as signposting to services, groups and networks which are available to support staff with their health and wellbeing.

The employee assistance programme is a confidential, self-referral counselling service for all employees to discuss concerns related to work or personal circumstances.

Where an employee’s underperformance is potentially linked to their health or a disability the line manager should work with the employee to explore occupational health support, reasonable adjustments in line with the Equality Act 2010 and where appropriate support from access to work or appropriate organisations. Information regarding health passports is available from the Culture and Improvement team.

External support may be identified by the trust, from time to time, for any part of this policy and procedure. The nature of such support will be identified separately and as appropriate.

Staff side representatives can be another form of support for employees who are members of a recognised trade union.

Staff side representatives will:

work in partnership with managers and the People Experience team to ensure that employees are treated fairly and consistently within the framework of this policy
represent members in the workplace at the appropriate stages of this policy

If at any stage problems, concerns or issues are raised there are a range of support options in place that are available to the employee where appropriate, some examples of which are detailed below:

employee counselling
fast track physiotherapy, any health-related absences should be managed in accordance with the sickness absence policy
occupational health services
flexible working, any health-related absences should be managed in accordance with the sickness absence policy
special leave policy
mentoring or shadowing
the trust’s coaching network
employee assistance programme

Please note that this list is not exhaustive, and advice is available from the People Experience team and via the relevant policies and procedures.

5.3 Managing unsatisfactory performance

There can be several reasons why employees experience difficulties in their ability to undertake the duties they have been employed to do or in coping with changes to their role.

These reasons may include ill-health or disability, training needs, changing demands of the job which impact on skills and job aptitude or difficulties with colleagues. In many cases the problems can be due to factors outside the employee’s control such as personal circumstance or issues with working relationships. In other cases, the problem can be linked to the individual’s conduct.

For performance concerns raised during a probationary period, advice should be sought from the People Experience team

5.3.1 Conduct or capability?

It is essential that managers identify the underlying cause of an individual’s poor performance from the outset and at the earliest opportunity, to determine the appropriate way of dealing with it.

5.3.1.1 Conduct

Where the underlying problem is related to the employee’s conduct, for example, carelessness, negligence or idleness (wilfully inadequate in that the person could do the work to the required standard if they chose to do so), the employee’s performance should be dealt with under the trusts personal responsibility framework principles or the disciplinary policy, depending on the severity of the concern raised.

In line with the principles of the personal responsibility framework, consideration may be given to addressing problems related to an employee’s conduct under this framework, as an alternative to a low level disciplinary matter. The framework is not designed to remove or replace the disciplinary policy but is intended to allow an alternative approach to be considered for achieving improved behaviour or conduct.

5.3.1.2 Capability

Where the underlying problem is one of a genuine inability to undertake particular duties, performance will be managed in accordance with the procedure for dealing with capability set out in this policy. Where there is evidence suggesting misconduct, the disciplinary policy would apply.

“Capability” is defined in S.98 (3) of the Employment Rights Act 1996 as “capability assessed by reference to skill, aptitude, health or any other physical or mental quality…”

The act states that “capability must relate to the work of the kind that the employee was employed by the employer to do”. This must be determined in accordance with the employee’s current contract of employment, job description and person specification.

5.4 The procedure for managing unsatisfactory performance

5.4.1 Process

At any time or stage of the capability policy, it is advisable to contact the People Experience team.

From the formal stage, level onwards the People Experience team should be consulted or involved.

The reasons for poor performance should be explored fully to determine the most appropriate procedure, for example, there may be personal circumstances which are impacting on an individual’s performance. A genuine lack of capability, therefore, may come about for a variety of reasons, including:

lack of aptitude, skill, or experience
inappropriate recruitment, induction, or training
lack of facilities crucial to performance
changes in the nature or allocation of work, for example, too heavy workload
personal or family problems
reorganisation of structure, role, or responsibilities
poor attendance at work related to genuine ill health

Wherever possible, managers should seek to address any shortcoming(s) or minor performance issues as they occur and without the need to implement this policy, use of negative criticism and non-specific concerns must be avoided when discussing any shortcomings.

Where the problems are more serious, repetitive, or frequent, a more structured support approach should be discussed and agreed, including opportunities for improvement and a series of informal meetings. However, if there is no improvement over a specified period, the formal stage of this policy should be invoked.

The capability policy does not apply to situations covered by other rust policies such as the sickness absence policy and disciplinary policy.

5.4.2 Timescale

Employees will be made aware of the shortfall in their performance standards and provided with assistance to improve through an initial process of standard setting that will include agreeing an improvement plan and reviewing progress against this plan. The improvement plan should be based on SMART objectives. SMART objectives are designed to help managers set objectives in an effective and productive manner. Specific and measurable objectives clearly define what exactly what needs to be achieved (specific) and you can tell when it has been achieved (measurable) because you have a way to measure completion. Achievable and realistic objectives engage and motivate individuals. Time-bound objectives ensure that time scales for the achievement of objectives are agreed.

In all the stages of this policy, there is reference made to review meetings which are held to evaluate whether the required level of improvement has been made in the employee’s performance. There is no specific time period relating to when a review should take place although it is recommended this should normally be between 1 and 3 months. In each case a manager (in conjunction with the People Experience team) should decide what is appropriate taking into account the timeframe guidelines provided in this policy, what support is being offered and what is the required improvement. Where possible the review timeframe should be discussed and agreed with the employee, although ultimately this should be determined by the manager.

The employee should be advised at each stage of the process the consequence of not meeting the required improvements outlined in the improvement plan and that that they may be moved through the stages of the policy. As part of their considerations managers will need to ensure that any action points that were agreed as part of the improvement plan were acted upon before the employee is moved to the next stage.

Where it has been identified that formal training is required before any improvement can be assessed then the timeframe should take this into account and the period for improvement should generally not commence until after the period of necessary training has been completed. The circumstances of each case will need to be considered and any periods for improvement of greater than 3 months will need the approval of the appropriate service manager or equivalent. This applies to all stages in the process.

The manager, usually the line manager, must ensure that other employees who are involved in the process are appropriately briefed and any training or support requirements are clearly outlined. Managers must also ensure that matters are dealt with confidentially.

5.4.3 Defining the issues

It is important to ensure that performance is being measured against reasonable expectations commensurate with the post, grade, banding, and experience of the post holder as outlined in the job description and person specification for the role.

Work performance problems may be identified by the individual member of staff who is experiencing difficulty, colleagues or the line manager. Where the individual recognises, they are having problems they should discuss this with their line manager as soon as possible. It is recognised that peer support is valuable, and colleagues may wish to discuss their concerns directly with an individual who appears to be struggling with performance should they feel comfortable to do so. Likewise, where a colleague notice there are problems, this should be referred onto the individual’s line manager. In this case and where the problems are identified by the line manager, the first, and the most important step is to make the employee aware of the concerns.

To inform any discussions with an employee concerning their poor performance, it is essential that evidence in the form of examples of their poor performance, for example, specific pieces of work or situations can be shared with them. Such information should be illustrative of concerns.

5.4.4 The informal procedure, informal counselling

Where an employee exhibits an inability to perform their duties satisfactorily, the matter will normally be dealt with informally in the first instance. The informal meeting will normally be between the employee and their line manager, and this is referred to as informal counselling.

Whilst it is not the norm for informal meetings, if the employee would like the support of a workplace colleague or staff side representative then this may be agreed by the manager with prior notification. A representative from the people experience department may also be invited to attend as support for the manager.

The main emphasis of the meeting should focus on discussing with the employee where there are shortcomings, establish the reasons for poor or diminishing performance and how he or she can be assisted in addressing the problem.

The line manager may wish to discuss these areas of concern with the People Experience team in order to understand how to move forward.

The manager will then agree the expected performance standards with the employee and a time period in which an improvement in performance is expected to be achieved. This time period should be reasonable and realistic in the context of the nature of the problem and to allow for any necessary support to be put in place. Consideration should also be given to the impact of any planned annual leave, study leave and bank holidays to ensure there is sufficient time for the employee to improve their performance.

If a manager and employee has agreed a time period for a target to be achieved by, there should be regular meetings, at least around once a month, in order to check on progress up to the given deadline. By doing this will help overcome any barriers to achieving this goal. It is recommended this is supported within monthly one to one’s where possible. Within one to one meetings, if managers find that their employee is struggling to meet this target it is advised that they analyse if the employee needs any extra support or if there are circumstances which have altered the need for the objectives or necessitate an amendment to the target or objectives previously agreed.

They will also agree how the employee’s performance will be monitored over this time. The manager will record the outcome of their meeting and confirm this in writing to the employee. This will indicate the nature of the unsatisfactory performance, what is expected and how future performance needs to be improved to meet the expected standards. It will also outline the support to be given, how their performance will be monitored. and over what time period this will be undertaken.

If the employee challenges the contents of the letter, they should first discuss it with the manager concerned, who will address their concerns. In the event of continued disagreement this issue should be raised with the next line of management in accordance with the principles outlined in the trusts grievance and dispute policy.

If the employee’s performance improves adequately over the agreed time scale, then the process will end at this stage. If however the employee’s performance remains unsatisfactory or the area of concern returns within a twelve month time period, then the manager will invoke the formal procedure as detailed in section 5.5. The line manager must ensure that regular supervision, clinical or non-clinical is provided to the employee as detailed in section 5.2.3.

It is possible that an underlying health problem, which may not be apparent, could be the cause of an employee’s poor performance. This should be considered and if appropriate, the employee referred to the occupational health service or signposted to their GP in accordance with the trust’s sickness absence policy.

5.5 The formal procedure, formal action

The formal procedure would be implemented, where either the informal procedure has proved to be ineffective, or where there appears to be serious concerns about an employee’s performance.

The manager will initially discuss the issues with the People Experience team, before invoking the formal procedure.

Prior to commencing or during the formal procedure if it appears that the cause of the performance issue relates to conduct, rather than capability, then it may be appropriate to default to and implement the personal responsibility framework principles or the disciplinary policy.

The formal stage of this process is summarised in appendix three.

5.5.1 Formal stage

If there is continued, unsatisfactory performance despite the employee being given reasonable support or assistance, objectives to meet and time to improve; a meeting should be arranged at the formal stage of this process.

The employee is entitled to be accompanied by a trade union representative or a colleague employed by the trust. The People Experience team should be consulted and involved at this stage of the process.

The letter inviting to the employee to meet, giving at least 7 working days’ notice, should include:

time, date and who will be attending the meeting
the procedure and stage of the policy being used
clear details of the shortfall in performance
details of any informal discussions, meetings, etc
that the employee will be given opportunities to discuss concerns or issues
right to representation by a trade union or work colleague from the trust

5.5.2 Formal stage meeting

The manager at the formal stage meeting will normally be the employee’s line manager. However, there may be situations where it is appropriate for the service manager to attend the meeting.

The purpose of the meeting should be outlined at the start of the formal meeting which should include:

the right to representation by a trade union or colleague from the trust
background by outlining the informal process to date and outcomes
mention previous discussions on support, assistance or adjustments and action taken
identify any additional support, assistance or adjustments going forward
acknowledge any improvement, however small
detail all aspects of the employee’s work which remains unsatisfactory
give the employee opportunities to respond, discuss and give any explanations
discuss, and agree, improvement plan, SMART objectives, and timescales
the warning that they may be moved to final formal stage if there has not been a satisfactory improvement in their performance
set dates for regular meetings and a date for the formal review meeting

Also discussed at the meeting should be the need for further consideration of any additional or refresher training; use of mentor; offer of support, for example, wellbeing resources or occupational health.

The manager should summarise discussions and agreements made at the meeting in writing. The required standards of performance must be clearly stated, and an improvement plan aimed at enabling the employee to improve and sustain their performance to satisfactory level will be agreed. The plan should include objectives (SMART), any support or development required, along with an appropriate timescale for review.

The timescale for the improvements will vary depending on the employee’s situation and in proportion to the level of performance standard. As a guideline, a period of between one and three months would normally be reasonable. Regular (fortnightly) meetings with the appropriate line manager should take place throughout this period. Notes and a written record of such meetings must be kept by the manager and shared with the employee.

The employee should be warned that if the performance is still unsatisfactory at the time of the formal stage review meeting, that they could be moved to the final stage of the capability policy and could potentially lead to dismissal if the required improvements are not achieved.

Following this meeting an outcome letter should be sent usually within 7 working days of the meeting as detailed below.

5.5.2.1 Formal stage review

At the end of the improvement period a formal stage review meeting should be held with the People Experience team, if appropriate, the employee, their line manager (or service manager) and their trade union representative or colleague from the trust.

The formal review meeting should outline what has happened since the previous meeting and any progress made against the improvement plan (any improvements or shortfalls in performance) and what assistance or adjustments have taken place to support the employee.

If there is some improvement, new targets and a further time period should be set. The employee should be informed that the required standard of performance is expected to be reached by the end of that time period. The employee should be made aware that if the required standards of improvement are not reached by the end of the time period, they could progress to the final stage of the capability policy and could potentially lead to dismissal if the required improvements are not achieved.

A final formal stage review meeting should be held at the end of the new time period at which the employee can be represented by a trade union or supported by an employee of the trust. At least 7 working days’ notice should be given.

In cases of satisfactory performance: following the formal stage review, it is established that performance has improved and been maintained at an acceptable level. The employee should be informed that no further action will be taken under this process, although their performance will continue to be monitored at formal stage should any performance issues recur within a 3 month period.

5.5.2.2 In cases of unsatisfactory performance

If the employee fails to meet the required standard, especially if a revised timescale and action plan was agreed, the manager should warn the employee that they will progress to the final formal stage of the capability policy and ultimately continued unsatisfactory performance may lead to dismissal. At this stage, redeployment could be considered by mutual agreement.

In cases where performance has fluctuated between an acceptable and unsatisfactory standard, the manager may decide to establish a new timetable for review. This may be appropriate in cases where the manager feels that improvements have been made but not sufficient to meet the required standard. The manager may allow a further time period for the employee to improve and then maintain that improvement.

A further final formal stage review meeting should be held at the end of the further time period.

Following the formal meetings outlined above an outcome letter should be sent usually within 7 working days. Where a further targets and timescales for improvement have been set the letter should include:

a detailed summary of the improvements required and standards to be achieved
any adjustments, support or assistance which were agreed
an improvement plan with clear objectives (SMART) and timescales for demonstrable improvements
set a date for any regular meetings and a formal stage review meeting
the warning that they may be moved to final stage if there has not been a satisfactory improvement in their performance and this could potentially lead to their dismissal

If the employee has been moved to final stage of the policy the letter must clearly state that the employee has been warned and moved onto final stage of the procedure, that ultimately their continued under performance could potentially lead to their dismissal and that they will be invited to a final stage meeting in due course.

5.5.3 Final formal stage

If, despite all measures outlined above, the desired improvement has still not been achieved and redeployment has not been utilised or no suitable alternative is available, a meeting must be convened by the manager whereby one option at this final stage is dismissal.

An authorising manager, not previously involved with the employee’s situation, will chair, and review the case and procedures followed. A people experience team representative will support this manager.

The line manager, or other appropriate manager involved with the procedure, will compile a statement of case which includes a timeline and index to any appendices (correspondence, notes from meetings, other relevant documents). The people experience adviser involved with the process will assist the manager in presenting the case at the final formal meeting.

The statement of case is a summary of the process, situation, meetings, etc, and will refer to appended documents. The statement should use clear language and provide adequate information and evidence supporting the manager’s case. This should be sent with as much notice as possible but with not less than 7 working days.

The letter informing the employee of the final formal meeting, must include the above information and invite him or her and their representative to submit a statement of case as soon as possible but with not less than 7 working days’ notice. It must also state that one option at that meeting is dismissal.

At the final formal meeting, the employee will again be clearly informed of the continued deficiencies or under-performance and given full opportunity to state their case, any mitigating circumstances or present any further information.

Following the meeting, or after an adjournment of the meeting, the authorising manager will decide as to whether there is any likelihood of the employee’s performance achieving an acceptable level by extending any assistance offered or the timescale agreed at the previous stage; or whether dismissal will be the outcome.

In summary, the following are possible outcomes of a meeting under this final formal meeting:

extend the review period so that performance can be further monitored
offer further assistance, for example, an extended time period to search for an alternative job
dismissal

If the decision to extend the review period and the performance improves to reach an acceptable standard, the employee will be monitored in this stage of the process for the following 12 months.

If all suitable training and guidance and all forms of reasonable assistance have been pursued; there is no suitable redeployment opportunity or the employee declines redeployment; and there have been no satisfactory, sustained performance improvements, then there may be no alternative but to dismiss the employee.

5.6 Records of discussions and action plans

The content of any records collated during the management of performance should include the date, content, those present and the agreed outcome, and should be kept on file in accordance with the criteria above.

A copy should be given to the employee irrespective of whether the discussion took place within the informal or formal stages of the procedure.

In the formal mode this may be through the letter issued to the employee as part of that process.

Within all stages in the process, an action plan will be developed to identify and document what the employee is expected to achieve, how this will be monitored and reviewed and how the manager or supervisor proposes to assist the employee in achieving the objectives set.

The action plan must be relevant, factual, and easily understood. It will ordinarily comprise actions required of the employee but also will document the actions and supportive measures to be taken by management.

5.7 Downgrading, banding or transfer

In certain cases, it may be appropriate to use downgrading or transfer to address the issues raised, rather than dismissal. Any downgrading or transfer will be subject to the agreement of the employee concerned, and subject to a suitable alternative post being available within the trust. Where agreement is reached with an employee to downgrade or transfer, this may also be accompanied by a programme of reorientation or further training. Where agreement is reached with an employee to downgrade or transfer, this action is not subject to appeal as the action has been agreed with the employee. Where employees are downgraded or transferred because of a capability issue there is no entitlement to pay protection.

5.8 Referral to external agencies and regulatory bodies

A referral is unlikely to be an issue until the final stages of this process have been entered into and either the performance will have become recurrent or habitual or the severity of the poor performance is of a level that warrants consideration of serious action.

Further advice on this issue will be provided by the People Experience teams.

5.9 Right of appeal

Employees who have been dismissed have the right to appeal against the dismissal to representatives of the board of directors.

Employees will be advised at capability hearings and in the letter confirming the outcome of any capability hearing of their right of appeal and will be given details of to whom any appeal should be addressed.

Appeals must be lodged in writing by the employee or their staff side or professional organisation representative within 21 calendar days of the date of the letter confirming the sanction, and the case for the appeal must be outlined in full.

Appeal hearings will be a review of the original decision, based on the case submitted by the employee and management’s response. Appeal panels will not contain anyone who has had previous involvement with the case. Appeal panels will be advised by a member of the human resources department.

The letter will also remind the employee of their right to be accompanied by a current workplace companion or union representative who is not otherwise involved in the process.

The purpose of the hearing will normally be to establish whether the conclusions of the original capability hearing were correct and whether or not the disciplinary sanction imposed at that hearing should be upheld, overturned, or replaced with a lesser sanction. Where the sanction is overturned, consideration needs to be given to the implications on any deferred pay-step progression in line with the pay progression procedure.

Where an appeal is to representatives of the board of directors, the panel will consist of three members of the board of directors and will be chaired by a director. Where the panel has fully re-heard the case and decides that the original sanction was inappropriate, the director on the panel will decide what, if any, alternative sanction to issue after taking into account the views of the other panel members and the advice of the human resources representative. Where the appeal panel has not heard all of the evidence that was presented to the original capability panel, but feels that the original outcome was unreasonable, they can remit the case to a fresh capability panel for a full re-hearing.

Should the appeal panel believe further information is required appropriate adjournment(s) to obtain the information should be taken.

Appeals will always be dealt with as soon as possible and will if possible be heard ideally within six weeks of an appeal being lodged.

5.10 Pay progression

Where an employee’s incremental date falls during a period in which they are being managed under the formal stages of this policy, their progression will be deferred until they are no longer being managed under the formal stages of this policy.

It is appreciated that this process may be difficult for the employee and managers will act with professionalism and sensitivity in addressing such issues. Therefore, all employees should also be notified and offered support through services the trust offers such as the employee assistance programme. More information about this can be supported by the People Experience team.

6 Training implications

6.1 Managers

How often should this be undertaken: On revision of the policy or new appointments or promotions.
Length of training: In house training.
Delivery method: Team brief and training session.
Training delivered by whom: Line managers and people experience advisors.
Where are the records of attendance held: ESR.

6.2 People Experience team

How often should this be undertaken: On appointment or revision of the policy.
Delivery method: On the job training and mentoring.
Training delivered by whom: Team leaders and head of workforce.

Employee groups requiring training: Staff side.
How often should this be undertaken: On revision of the policy and at policy forum.
Delivery method: Awareness and briefing sessions on policy.
Training delivered by whom: Workforce and OD directorate.

7 Monitoring arrangements

7.1 Number of formal performance cases

How: Review of HR data.
Who by: PET.
Reported to: HROD.
Frequency: Annually.

7.2 Protected characteristics analysis of employees subject to formal performance monitoring action

How: Completion of monitoring forms by People Experience team.
Who by: PET.
Reported to: HROD.
Frequency: Annually.

8 Equality impact assessment screening

To download the equality impact assessment associated with this policy please follow the link: EIA.

8.1 Privacy, dignity and respect

The NHS Constitution states that all patients should feel that their privacy and dignity are respected while they are in hospital. High Quality Care for All (2008), Lord Darzi’s review of the NHS, identifies the need to organise care around the individual, ‘not just clinically but in terms of dignity and respect’.

As a consequence the trust is required to articulate its intent to deliver care with privacy and dignity that treats all service users with respect. Therefore, all procedural documents will be considered, if relevant, to reflect the requirement to treat everyone with privacy, dignity and respect, (when appropriate this should also include how same sex accommodation is provided).

8.1.1 How this will be met

Policy does not relate to patients.

8.2 Mental Capacity Act

Central to any aspect of care delivered to adults and young people aged 16 years or over will be the consideration of the individuals capacity to participate in the decision making process. Consequently, no intervention should be carried out without either the individuals informed consent, or the powers included in a legal framework, or by order of the court.

Therefore, the trust is required to make sure that all employees working with individuals who use our service are familiar with the provisions within the Mental Capacity Act (2005). For this reason all procedural documents will be considered, if relevant to reflect the provisions of the Mental Capacity Act (2005) to ensure that the interests of an individual whose capacity is in question can continue to make as many decisions for themselves as possible.

8.2.1 How this will be met

All individuals involved in the implementation of this policy should do so in accordance with the guiding principles of the Mental Capacity Act (2005) (section 1).

9 Associated documents

People performance management toolkit, NHS employers
Disciplinary policy
Sickness absence policy
Healthy workplaces, staff support and stress at work policy
Flexible working policy and procedure
Special leave policy
Management Supervision for non clinical staff policy
Supervision of clinical staff policy
Personal development review (PDR) policy
Corporate and local service induction policy
Grievance and dispute policy
Appointment of staff policy
Pay progression procedure

10 References

Advisory, conciliation and arbitration service (ACAS).
Agenda for change terms and conditions of service handbook.
Maintaining high professional standards.
People performance management toolkit, NHS Employers (June, 2021).

11 Appendices

11.1 Appendix A Managing performance positively

Strengths based performance management

This is a non-linear process; it may not progress or develop smoothly form one stage to another in a logical way. Instead, it may develop in different directions at the same time.

Implement upon commencement for all new employees or employees appointed to a new role within the organisation.
Ensure that an appropriate induction programme is in place. Clarify the duties of the post and general expectations associated with it. Provide appropriate training to new starters or newly promoted staff, do not assume they know everything.
Provide relevant job related training.
Provide regular supervision and balanced feedback.
Reinforce the standards and level of performance when required Inform employee of the consequences of failing to perform at the required level required for the post.
Ensure that a formal personal development review is undertaken to identify personal or professional needs. Ensure that feedback provided is balanced between constructive and positive feedback.

11.2 Appendix B Managing poor performance, informal procedure

Problem of poor performance highlighted and evidenced.
Discussion between manager or supervisor and employee.
Identify causes of poor performance.
Clarify managerial or supervisory expectations via informal counselling.
Action plan to resolve difficulties.
Poor performance resolved.
- no further action
Problems continue.
- invoke formal procedure

11.3 Appendix C Managing poor performance, formal procedure

One to one supervision.
Performance standards not met.
Informal meeting.
Discuss standard required, offering support, training, referral to OH, set target for improvement:
- standard not achieved, regular interim meetings
- standards achieved
Formal stage.
- standards met, stay in procedure
- review action, offer further support, revise standard and review time period for improvement
Final formal stage:
- extend review period to further monitor performance
- offer further assistance, for example, redeployment
- dismissal

11.4 Appendix D Possible reasons for poor performance

Worries or problems at home or work, counselling or practical help may resolve the issue.
Difficulty with one particular aspect of the role, constructive supervision, training, coaching, mentoring, education or secondment, one or any combination may overcome the difficulty. Review expectations in relation to performance and personal objectives set.
An underlying medical condition or illness, advice may be sought from occupational health in accordance with the sickness absence policy. Any advice and or reasonable adjustments should be explored as necessary.
Unsuitability of working pattern, flexible working options can be explored, in accordance with the flexible working policy and procedure.
Feelings of being bullied or harassed: Advice should be sought from the People Experience team in accordance with the prevention of bullying and harassment procedure and the appropriate support mechanisms put in place.
Work related Stress, a risk assessment should be undertaken and advice sought from the People Experience team in accordance with the management of work related stress procedure. This may include advice from the occupational health department.
Workload (either too much or too little), a review of the working pattern should be undertaken and the levels of autonomy and delegation reviewed.
Alcohol or substance misuse, immediate advice should be sought from the People Experience team and the occupational health department. Where the employee may pose a risk to themselves, the trust and wider service users or patients, disciplinary proceeding may be invoked.
Covid 19 and hybrid working, the trust recognises that the Hybrid Working Model with Covid 19 has bought challenges in relation to job training, which could therefore have an impact on performance. We ask managers to support employee’s in getting training needed in a Covid 19 friendly way and be mindful when managing an employee’s performance on this topic. The trust also recognises that online training does not suit all learning styles, and therefore we would encourage reasonable adjustments to training where possible.
Obstacles created by operational issues, review objectives and change as necessary. Where the employee has no control over circumstances. Be willing to consider where the operational circumstances, for instance high volume of work, staff shortages etc might have an effect on productivity. Be open to amending objectives during the year based on the situation.

11.5 Appendix E Performance management action plan

Performance management action plan

Document control

Version: 5.1.
Unique reference number: 244.
Date ratified: 18 August 2022.
Ratified by: Corporate policy approval group.
Name of originator or author: Associate people experience partner.
Name of responsible individual: Director of people and. organisational development
Date issued: 19 August 2022.
Review date: August 2025.
Target audience: All employees and staff seconded into the trust.

Page last reviewed: April 12, 2024
Next review due: April 12, 2025

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