The capability process supports employers in dealing with issues regarding employee performance. We have put together a checklist for businesses to ensure they follow the correct process.
Check (and comply with) any relevant procedures and employment contract provisions.
Keep confidential records of correspondence and telephone calls and meetings.
A series of formal warnings are likely to need be given before an individual can be safely dismissed.
Review performance by reference to statistics, managers’ feedback, job description, training record, health and safety/accident records and appraisals.
Consider whether there is anything which could be done to support improved performance. If necessary, follow capability procedure, offering practical guidance and assistance, setting timescales for improvement, and giving warnings where appropriate.
Make sure the employee knows the standard expected of them.
Keep in contact with employee throughout procedure.
A capability meeting will usually be conducted by an employee’s line manager or a more senior manager, and is often also attended by someone from human resources, whose role will primarily be to take notes. The aim of the meeting is to:
Clarify the required standards the employer feels the employee has failed to meet and examine the evidence in this respect.
Allow the employee to ask questions, respond to the evidence put forward, provide any evidence he or she may have and put his or her views across.
Establish the likely reasons for the employee’s poor performance.
Identify what can be done to assist the employee in improving his or her performance, such as additional training or supervision.
Set targets for improvement and a timescale for review.
The employer should communicate its decision to the employee in writing as soon as possible after the meeting
If the employer decides that the employee’s performance is unsatisfactory, it may give him or her a written warning. If the employee’s performance has fallen seriously below the required standard, the employer may decide to go straight to a final written warning, rather than a first written warning (see below). However, it is good practice to give an employee at least two warnings, and therefore two opportunities to improve, before any dismissal for poor performance.
The written warning should set out:
How long it will remain live on the employee’s personnel file, after which it should be disregarded.
The areas in which the employee’s performance has fallen below required standards.
Targets for improvement and the timescale in which improvement is required.
Any additional measures the employer is going to take in order to assist the employ in improving his or her performance, such as additional training or supervision.
How long the review period should be will depend on the nature of the poor performance, the needs of the business and what would be reasonable in the circumstances.
The employee’s performance should be regularly monitored during the review period.
If the employee’s line manager is satisfied with his or her performance at the end of the review period, the employee should be informed that no further action will be taken.
However, if the employee’s line manager is still not satisfied, a further capability meeting should be arranged and the employee should be notified of the meeting, and the possible outcomes of the meeting, in the same way as for the initial capability meeting.
Further capability meetings
At the second capability meeting (and any subsequent meetings) the employee will have the same rights as at the first meeting, including the right to bring a companion.
The focus of the second meeting will usually be on the extent to which the employee’s performance has improved over the review period and if it has not improved to a satisfactory level, the reasons for this and whether anything further can be done to assist him or her.
A further period of review and further objectives may be agreed with the employee at the meeting, or these may be notified to the employee after the meeting in the outcome letter.
Following the second meeting, if the employer decides that the employee’s performance has not improved as required, it may decide to give the employ a final written warning. A final written warning should typically set out:
The areas in which the employee has continued to not meet required performance standards.
Targets and timescales for improvement.
Any measures, such as additional training or supervision, which will be taken to assist the employee in improving his or her performance.
The consequences if the employ fails to improve to the required standard within the review period, or of further unsatisfactory performance within the period in which the final warning is active.
A final written warning will normally remain active for six to twelve months. After that time, it may remain on the employee’s personnel file but should be disregarded in deciding the outcome of future capability proceedings.
If the employee does not meet the further targets the employer has set within the time frame specified, further action should be taken and the employer may ultimately decide to dismiss the employee.
Reviewing the alternatives
Before taking a decision to dismiss, consider surrounding circumstances, age and length of service of employee together with action taken in respect of similar circumstances in the past.
Consider importance of employee and/or the post occupied, to the business, the impact their continued level of performance is having on the business and the difficulty and cost of continuing to deal with their performance before contemplating dismissal.
Consider whether employee could take up alternative employment or whether there are any other options that would avoid the need for dismissal.
Review evidence to ensure it is up-to-date. Identify correct potentially fair reason for dismissal – capability, conduct or “some other substantial reason”.
Once you have reached the final stage of the process, the warnings detailed in the procedure having been exhausted and there are no other reasonable steps you consider you could take to help the employee improve you may need to consider dismissal.
Once dismissal is contemplated, write to employee to invite them to a meeting. Give enough information about the circumstances you are taking into account (see above) and the possible outcomes, to enable the employee to participate meaningfully.
Hold meeting with employee and give them the opportunity to present their case against dismissal.
Confirm any subsequent decision to employee in writing.
On dismissal ensure employee’s contractual and statutory entitlements are met and that they receive correct pay entitlement, including holiday pay under the Working Time Regulations 1998.
In the dismissal letter identify reason for dismissal, effective date of dismissal and offer employee the right of appeal from the dismissal decision.
Hold an appeal meeting if requested by employee and confirm decision to employee in writing.
Head of Employment Law