Performance and Capability
Policy & Procedure
Version: V7
Ratified by: People & Culture Steering Group
Date ratified: 14/06/2023
Job Title of author: Human Resources Business Partner
Reviewed by Committee or Expert Group Staff Partnership Forum and SPF Policy Sub Committee
Equality Impact Assessed by: Head of People Partnering
Related procedural documents
Capability Process Flowchart
Review date: 14th June 2026
It is the responsibility of users to ensure that you are using the most up to date document template – i.e. obtained via the intranet.
In developing/reviewing this policy Provide Community has had regard to the principles of the NHS Constitution.
Version Control Sheet
Version Date
Author Status Comment
V1 April 2009 HR Manager Ratified New
V2 November 11 HR Manager Approved Replaces Policy: HRPOL8 - Managing Poor
V3 November 13 HR Business Partner – J Aylen Approved Revision/Rebranding
V4 May 15 HR Business Partner – J Aylen Ratified Review & Revision
V5 August 16 HR Business Partner – S Tovey Ratified Revision
V6 November 2019 HR Business PartnerOlutayo Oyefeso Ratified Revision
V7 HR Business Partner Ratified Revision
POLICY STATEMENT
Provide Group is committed to providing an excellent standard of patient care and to enable employees to deliver this. We believe that the potentials of all employee should be maximised by recognising, developing and improving their skills and capabilities. We provide effective management support, trainings, encouragement guidance required to improve work performance in the delivery of their role safely and effectively.
Provide is committed to employees continued professional development. Employee overall performance will normally be formally reviewed each year by Provide with a view to giving the employee an opportunity to discuss all the relevant aspects of their progress, development and career aspirations.
The Performance Development Review (PDR) and supervision meetings may not always succeed in achieving the required level of performance improvement and in such situations a formal Performance and/or Capability procedure is required.
1. SCOPE
The Performance & Capability Policy and Procedure applies to all employees of the Provide Group with the exception of:
• employees who are within their probationary period of service (refer to the Probationary Procedure), and
• Medical and Dental Staff, (refer to the provision of circular HSC2003/012 entitled “Maintaining High Professional Standards in the Modern NHS”.
The purpose of the procedure is to provide a framework within which managers can work with employees to deal with concerns over performance fairly, steps are taken to establish the facts, maintain satisfactory performance standards and to encourage improvement where necessary.
This procedure does not apply to cases involving sickness absence, proposed redundancies or misconduct. In those cases, reference should be made to the appropriate policy or procedure.
The Performance & Capability policy may apply in cases of issues of capability related to ill health where such issues impact on performance (as opposed to attendance)
2. Definitions
2.1 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.
2.2 Performance - is measured against reasonable expectations commensurate with the post, banding and experience of the post holder as outlined in the job description and person specification for the role.
A distinction should be drawn between a genuine lack of capability and conduct issues (Appendix 3). In circumstances where there are both wilful misconduct issues and/or a neglect of duty then the disciplinary procedure will apply.
2.3 Improvement Note or Capability warning
An improvement note or Capability Warning is a formal warning to advise an employee that their level of performance is unacceptable and that a failure to improve could ultimately result in their dismissal. This warning may only be issued following a formal capability meeting.
2.3.1 A line manager has the authority to issue a maximum of 2 Capability Warnings under this policy in any rolling 12-month period, following adequate review periods.
• First written warning
• Final written warning.
2.3.2 The warning specifies the performance problem, the improvements and standards required, the timescale for achieving this, details of any additional support, supervision or training to be given and the frequency of review meetings to be held during the improvement period set.
2.3.3 The “improvement note” will remain ‘active’ for a minimum of 12 months, during which the required standards, once reached, should be maintained.
2.3.4 In exceptional circumstances (e.g. safeguarding issues, or where the capability issue(s) could cause significant clinical or patient risk, financial risk, or detriment or significant risk to the organisation), managers have the ability to progress directly to Stage 3 of this procedure. In these cases, advice should be sought from Human Resources.
2.4 Review period
This is a period of time over which an employee’s performance will be monitored and at the end of which a review of performance will take place. The formal review meeting should be an opportunity to look back at the evidence collected through the monitoring period and decide on an appropriate way forward.
2.4.1 The employee is expected to work towards the objectives for improvement agreed in the formal meeting. The manager is expected to ensure that any support agreed is provided to the employee and that all monitoring meetings take place.
2.4.2 The monitoring period is usually within 4-8 weeks, depending on the nature of the post and the duration and availability of any training required.
2.4.3 The manager is required to agree and provide reasonable support e.g. training. The procedure may not move forward until this has been provided and a reasonable time has elapsed in order for the employee to show improvement.
2.4.4 Regular meetings should be held and clear evidence of progress towards the objectives should be recorded. If there has been an improvement in performance
against the standards set in the action plan then there are two possible courses of action:
3. Roles and responsibilities
3.1. In applying this procedure managers are expected to: -
• Ensure that all employees are aware of the performance standards expected from them and the consequences of failing tomeet these standards including theimpact on incremental pay progression and eligibility to receive the Profit Share Plan award
• Address performance issues informally within one to ones / supervision meetings in the first instance and these should be recorded and monitored
• Discuss and seek advice from their HRBP/HR Advisor at all stages of the procedure and if an employee is known to have a disability or discloses a disability in the course of discussions with management
• Where required, specialist advice should be sought from the Occupational Health Department and consider adjourning meeting pending OH
• Keep an adequate and accurate record of all meetings within this procedure
• Consider the support required for employees to reach the desired performance standards
• Ensure there are sound and demonstrable reasons to progress through the stages outlined within this procedure
To forward a copy of the letter at each stages of the process to the HR Department at hr.provide@nhs.net to be placed on the personal file.
3.2. Employees are expected to:
• have a recognition of the performance standards required from them in order to fulfil their role to ensure the needs of the service are met
• reflect on their own performance, whether these are related to work, personal circumstances or domestic issues and work with their manager in seeking resolution and to raise their performance standards
• identify any support (training and development needs) they require in order to meet the required performance standards, attend any training required and ensure it is kept up to date
• identify whether they have a protected characteristic (e.g. a disability) which impacts on their performance
• take all reasonable steps to attend meetings or hearing with management to discuss their performance Failure to attend a hearing without good reason may be treated as misconduct.
• achieve the agreed targets within set timescales
• write within 10 days of the meeting with their line manager if they feel the outcome letter does not accurately reflects the discussion, stating their understanding.
3.3 Human Resources
A member of the People Partnering Team may attend formal stages meetings.
In conjunction with the Occupational Health report, advise on reasonable adjustments in supporting employee with a disability under the Equality Act 2010.All potential reasonable adjustments should be considered such as seeking advice from external
organisation where necessary, adjustments to the existing job role; or whether suitable alternative employment should be considered and if so, any restrictions as to the type of role or adjustments which would be required to be made to the role in order to ensure suitability
4 Issues of concern identified after completion of the probation period
Where issues of capability arise immediately after an employee has passed their probationary period and confirmed to post, it is essential to deal with issues of performance or conduct informally in the first instance (See the Informal Capability Stage)
It is essential that, at all times, the manager applies the principles outlined in this policy and advises the employee of management concerns. Employees must be given an opportunity to improve their performance by developing a Performance Improvement Plan and identifying other support mechanisms.
5. Referral to professional body
• If the employee is a member of a statutory professional body e.g. a qualified nurse; and they are found to have underperformed in their role a referral to the professional body may be made.
• If an incident of serious/gross incompetence has been found and the employee is dismissed, a referral to the professional body will be made.
• This should be discussed with the appropriate Professional Lead for Provide to ensure that the relevant professional body is consulted and/or notified appropriately and in accordance with the professional body’s code of ethics/conduct.
• The employee will be informed of this and any subsequent action. This would be following Human Resources advice and a review meeting to advise the employee of this.
6. Withholding Increments/Profit Share Award
6.1 Provide Group reserves the right to withhold incremental progression of salary for an employee (where appropriate) when they are in the formal stages of this policy.
6.2 Where the employee does not meet performance expectations their increment will be put on hold until performance has met the required expectations.
6.3 The line manager must communicate to the employee that discussions held under the formal stages of this policy will result in the employee not being eligible to receive a Provide’s Profit Share Award (please refer to Provide Profit Share Plan rules on the Community platform).
7. PROCEDURE FOR MANAGING CAPABILITY/PERFORMANCE
The stages are outlined briefly below:
• Informal Stage
• Formal Stage One
• Formal Stage Two
• Formal Stage Three- Hearing
• Appeal Hearing.
See Appendix 1 of the Capability Process Flowchart as a quick reference when planning an approach to managing an employee’s under performance.
7.2 Discontinuing the formal capability process
The manager must ensure that robust performance management systems remain in place to monitor the level of performance.
If performance subsequently drops below the minimum standards required once the process has ended and should a live Capability Warning be in place, it may be appropriate to recommence the process at the next stage of the procedure.
In cases where the capability issue(s) could cause significant clinical or patient risk, financial risk, or detriment or significant risk to the organisation, the timescales for improvement may be reduced.
If subsequent capabilities issues arise which are different to those originally identified, the line manager should contact a member of the HR team for advice in these cases
7.3 Right to be accompanied
The employee is entitled to be accompanied by a trade union representative or a work colleague at meetings held under the formal stages of this procedure. If the employee or their companion cannot attend at the time specified, they should inform their manager immediately and management will seek to agree an alternative time.
7.4 INFORMAL STAGE
7.4.1 Early intervention, when poor performance is identified, is encouraged, enabling a supportive approach to be taken as part of supervision meetings, ideally at an informal level in the first instance. It is important to recognise that many issues of capability can be, and should be resolved without recourse to the formal capability procedure.
7.4.2 The standards required should be clarified, targets set and appropriate training/support should be agreed and implemented to assist the employee to reach the required standards.
7.4 3 This should be a positive and constructive discussion to provide the employee with an opportunity to express their opinion and for the manager to consider external factors, which may be contributing to the poor performance.
7.4 4 The manager must communicate to the employee that they are within the Informal Stage of this policy and record this within the one to one / supervision meetings. A date
to review progress will be set within 4-8 weeks. Progress will continue to be monitored through regular one to one/supervision meetings.
7.4 5 Where the desired performance standards have been met, the employee will be placed in a 12-month monitoring period during which the performance/standards should be maintained Should performance/standards not maintained or further performance issues need to be raised within this monitoring period, the manager will invoke the formal stage one.
7.5 FORMAL STAGE ONE
7.5.1 The employee will be asked to attend a formal capability meeting by their line manager or another appropriate manager at least 7 Calendar days (excluding bank holidays) notice will be given. This will be confirmed in writing to the employee.
7.5.2 The objectives of this meeting will be to: -
• Explain clearly the gap between the employee’s performance and the required standard;
• Identify the causes of the poor performance and if these can be addressed by providing training/support to the employee to achieve the necessary performance improvement. This support may include retraining, further training, coaching, mentoring, closer supervision and support.
• Set a reasonable period for the employee to achieve the required performance standards and agree a monitoring system during that period; a reasonable time period would normally be no longer than 4 – 8 weeks; A date for a review meeting at the end of this period should be set at this stage.
• Explain that, if there is any further deterioration in performance, or sufficient cause for additional serious concerns during the agreed review period, the manager can initiate the next stage (Formal Stage 2) at any time. This would be following a review meeting to advise the employee of this.
• Inform the employee that a letter (improvement note) detailing the gap in performance and actions agreed will be issued. This letter is equivalent to a first written warning. And will remain ‘active’ for a minimum of twelve months, during which the required standards, once reached, should be maintained.
7.5.3 At the end of the Stage One meeting, an improvement notice will be sent to the employee within 7 Calendar days (excluding bank holidays) of the meeting, enclosing a copy of the action plan, with a copy to his/her representative, setting out:
• The agreed areas requiring improvement in performance; the timescales; the actions in providing support. This detail should be transferred into an action plan which is continually reviewed at appropriate stages.
• that redeployment or transfer (temporary or otherwise) to an alternative role can be considered at any time during the process if there are risks being presented due to the employee’s inability to perform satisfactorily in the role.
• that, if there is a further deterioration in performance, or sufficient cause for additional serious concerns during the current review period, the manager can initiate the next stage (stage 2) at any time. This would be following a review meeting to advise the employee of this.
• Warn the employee that failure to achieve the required standards within the agreed timescales could ultimately lead to consideration as to whether his or her employment should be terminated.
7.6
Formal Stage One Review Meeting
7.6 1 Following the Stage One meeting, and the agreed timescale to review performance, a review meeting will be held
7.6 2 The objectives of this meeting will be to review the actions identified previously to support the employee to enable them to improve their performance and consider:
• If the desired standards have been achieved, a letter confirming that there will be no further action Failure to sustain the desired performance standards during the following 12 months will result in progressing to the next stage (Stage 2) of this procedure. The outcome of the meeting will be confirmed by the manager in writing within 7 Calendar days (excluding bank holidays) of the meeting.
• If by the end of the review period the employee is not meeting the required standards the manager can initiate the next stage of the procedure. This Formal Capability Stage Two meeting may be carried out immediately following the Formal Capability Stage One Review meeting, to avoid unnecessary delay.
• Where the desired standards have not been achieved and there are extenuating circumstances beyond the control of the employee, the manager has discretion to continue with a further review period. In this scenario the manager should consider whether to continue with the support already in place or if there are any additional actions that might be helpful, including redeployment.
7.7 FORMAL STAGE TWO
7.7.1 The employee will be asked to attend a formal meeting by their line manager or another appropriate manager.
7.7.2 The procedure and format of the meeting will also be as per Stage 1 with the support measures previously identified being reviewed and discussion as to whether they should continue or if additional support measures might be helpful.
• If there is any further deterioration in performance, or sufficient cause for additional serious concerns during the agreed review period, the manager can initiate the next stage (stage 3) at any time.
• Inform the employee that a letter (improvement note) detailing the gap in performance and actions agreed will be issued.
• This letter is equivalent to a final written warning and will remain ‘active’ for a minimum of twelve months, during which the required standards, once reached, should be maintained.
• Inform the employee of the implications of failing to meet the required performance standards, within the agreed timeframe or earlier, and that the review meeting can be brought forward accordingly, see above.
7.8 Formal Stage Two Review Meeting
7.8.1 Following the Stage Two meeting, a review meeting will be held. The format of the review meeting will also be as per Stage 1.
• A letter confirming the outcome of the meeting must be shared with the employee and their representative.
• Where the desired standards have not been achieved and there are extenuating circumstances beyond the control of the employee, the manager has discretion to continue with a further review period. In this scenario the manager should consider
7.9
whether to continue with the support already in place or if there are any additional actions that might be helpful, including redeployment.
• If by the end of the review period the employee is not meeting the required standards or failed to sustain the desired performance standards during the following 12 months, the manager can initiate the final stage of the procedure (Formal Stage 3 – Capability Hearing). The manager will complete a management report detailing the nature of the capability concerns together with documentary evidence which will be presented in the hearing.
Formal Stage Three (Capability Hearing)
7.9.1 The employee will be asked to attend a formal hearing The panel will consist of the employing department’s Director or a nominated Senior Manager (Head of Service, Assistant Director, Deputy Director or equivalent), who will chair the Hearing, accompanied by a HR representative.
The Chair has discretion to call on technical or specialist officers to advise the panel, or to invite other managers to form part of the panel.
7.9.2 The purpose of this Hearing is to:
• Review all the assistance and support that has been offered to the employee to secure improvements in performance; including any suitable alternative employment opportunities.
• Allow the employee to respond to the issues raised and to offer any further explanation.
• Consider whether the employee’s contract of employment should be terminated on the grounds of capability.
7.10 PROCEDURE FOR THE FORMAL STAGE 3 (CAPABILITY HEARING)
7.10.1 Where it has been decided to proceed to a formal Capability Hearing the employee will be advised in writing by the Manager who has been reviewing the capability (line manager) and given at least 14 Calendar days (excluding bank holidays) written notice. Shorter notice of the hearing may be mutually agreed.
7.10.2 In exceptional circumstances, a deferment where further time is required to prepare for a hearing will not be unreasonably refused, but such a deferment will not normally exceed 7 Calendar days (excluding bank holidays).
7.10.3 Whenever possible, the letter should be hand delivered to the employee, where this is not possible (e.g. employee is not at work), the letter should be sent to the home address by recorded delivery or electronically
8. CONDUCT OF THE CAPABILITY HEARING
8.1 Provide has a guide for the conduct of the hearing However, the Chair of the Panel has the discretion to vary this to ensure fairness in the proceedings.
9. OUTCOME
9.1 The panel, depending on the circumstances of the case, will decide on one of the following actions: -
• that desired performance standards have been achieved and there is no further action;
• to give a further period of review specifying the required levels of performance improvement, timescales and supporting actions, followed by a final review meeting with the manager.
• If the performance remains unsatisfactory after this period the hearing will be reconvened. (The employee should be warned that where there is a single error and the action or potential consequences of that error are, or could be extremely serious, there will be no further warnings and this could result in the termination of the employee’s contract)
• to terminate the employee’s contract of employment on the grounds of capability with contractual notice.
• As the panel has decided that the individual should not remain in their post, during their notice period it is likely the individual will be asked to carry out alternative duties. In addition, during the notice period the employee may be offered and accept alternative employment.
• Consideration could also be given to alternative options such as Other appropriate action may also be considered at this stage, such as voluntary redeployment into an alternative or lower banded post (pay protection will not apply) or voluntary early retirement Ill health early retirement. This should be discussed with your HR Business Partner/HR Advisor
9.2 The Chair of the Panel presents the decision and should be confirmed in writing by no later than 7 Calendar days (excluding bank holidays) after the end of the hearing.
10. RIGHT OF APPEAL
10.1 In cases of termination of employment the employee will be notified of a right of appeal (See Disciplinary Policy & Procedure). Such appeals will need to be submitted in writing, to the Director within 14 Calendar days (excluding bank holidays) of receipt of the notice letter stating the grounds for the appeal.
11 COMPLAINTS / GRIEVANCES RAISED DURING THE CAPABILITY PROCESS
11.1 If the employee raises a grievance or makes a complaint under the Dignity at Work Code about the application of the procedure or another related matter, the manager and Human Resources should consider whether the capability procedure should be suspended whilst the complaint is investigated.
12 MONITORING
12.1 This policy will be reviewed at least every 3 years in line with the Policy for the Management of Procedural Documents and more frequently in line with any legislative changes.
EQUALITY IMPACT ASSESSMENTS: Framework and outline briefing notes
Attached is a framework, customised to Provide and some short advisory notes on an approach on carrying out Equality Impact Assessments (EIAs) at Provide.
Briefings are being arranged to explore undertaking such assessments in practice, using ‘live’ and relevant case studies.
EQUALITY IMPACT ASSESSMENT TEMPLATE: Stage One: ‘Screening’
Name of project/policy/strategy (hereafter referred to as “initiative”):
Performance and Capability Policy & Procedure
Provide a brief summary (bullet points) of the aims of the initiative and main activities:
Outlines the policy and procedure for handling performance/capability matters across the Provide Group.
Project/Policy Manager: Head of People Partnering Date: June 2023
This stage establishes whether a proposed initiative will have an impact from an equality perspective on any particular group of people or community – i.e. on the grounds of race (incl. religion/faith), gender (incl. sexual orientation), age, disability, or whether it is “equality neutral” (i.e. have no effect either positive or negative). In the case of gender, consider whether men and women are affected differently.
Q1. Who will benefit from this initiative? Is there likely to be a positive impact on specific groups/communities (whether or not they are the intended beneficiaries), and if so, how? Or is it clear at this stage that it will be equality “neutral”? i.e. will have no particular effect on any group.
Neutral
Q2. Is there likely to be an adverse impact on one or more minority/under-represented or community groups as a result of this initiative? If so, who may be affected and why?
Or is it clear at this stage that it will be equality “neutral”?
Neutral, HR data is not highlighting that more colleagues from minority/underrepresented groups are subject to performance/capability management, however we will continue to monitor
Q3. Is the impact of the initiative – whether positive or negative - significant enough to warrant a more detailed assessment (Stage 2 – see guidance)? If not, will there be monitoring and review to assess the impact over a period time? Briefly (bullet points) give reasons for your answer and any steps you are taking to address particular issues, including any consultation with staff or external groups/agencies.
Positive, the policy & procedure enables a consistent approach by managers across the Provide Group.
Guidelines: Things to consider
• Equality impact assessments at Provide take account of relevant equality legislation and include age, (i.e. young and old,); race and ethnicity, gender, disability, religion and faith, and sexual orientation.
• The initiative may have a positive, negative or neutral impact, i.e. have no particular effect on the group/community.
• Where a negative (i.e. adverse) impact is identified, it may be appropriate to make a more detailed EIA (see Stage 2), or, as important, take early action to redress this –e.g. by abandoning or modifying the initiative. NB: If the initiative contravenes equality legislation, it must be abandoned or modified.
• Where an initiative has a positive impact on groups/community relations, the EIA should make this explicit, to enable the outcomes to be monitored over its lifespan.
• Where there is a positive impact on particular groups does this mean there could be an adverse impact on others, and if so can this be justified? - e.g. are there other existing or planned initiatives which redress this?
• It may not be possible to provide detailed answers to some of these questions at the start of the initiative. The EIA may identify a lack of relevant data, and that datagathering is a specific action required to inform the initiative as it develops, and also to form part of a continuing evaluation and review process.
• It is envisaged that it will be relatively rare for full impact assessments to be carried out at Provide. Usually, where there are particular problems identified in the screening stage, it is envisaged that the approach will be amended at this stage, and/or setting up a monitoring/evaluation system to review a policy’s impact over time.
