This model policy is intended to provide an example to employers and employees of good practice. It is not intended to represent a statement of the law. Any reference to male persons in the policy should be read as including, or being, female persons where this is appropriate.

JACS recognises that it is often difficult for small employers (i.e. those with a single manager/owner and a very small number of employees) to conform to all the recommendations below. In particular, such employers may find it impossible to hold a capability appeal using a different person to chair the appeal than the person who took investigated the grievance in the first place. Similarly, the size of an organisation may make it inevitable that the same person chairs a capability hearing having previously acted as the investigator in the matter. In the Employment Law the Tribunal is able to consider the size and administration resources of the organisation in determining whether the employer acted reasonably. Providing employers in small organisations make every effort to ensure fairness, despite the limitations of their resources, the Tribunal should take that into account.

A MODEL POOR PERFORMANCE (CAPABILITY) POLICY AND PROCEDURE

(While this policy forms part of the terms of employment it is not contractually binding).

Purpose of the Policy - The Company will at all times endeavour to ensure that you achieve and maintain a high standard of performance in your work. To this end it will ensure that standards are established, performance is monitored and that you are given appropriate training and support to meet these standards.  At all times the confidential nature of any problems will be maintained by both the employee and the employer.  Records and minutes of all discussions and meetings must be made and retained in case of future claims.

Statutory Entitlement - Right to representation - Employees have the statutory right to be represented at any formal part of a capability investigation.  This representative can be either a work colleague, union shop steward from within the organisation (if applicable) or a full-time union officer even if the company does not recognise that Union.  The representative has the right to speak on behalf of the employee, state their case, and summarise the points made.  However, the representative cannot answer questions on behalf of the employee.

PROCEDURE

1. Where your manager/supervisor first establishes that your performance is unacceptable, an informal discussion will be held with you to try to establish the reason. Should this discussion determine that the established standards are not reasonably attainable, the standards will be reviewed.

2. Should the interview establish that the performance problems are related to your personal life, any appropriate necessary counselling/support will be considered. However, if it becomes apparent that the poor performance constitutes misconduct, the disciplinary procedure will be invoked.

3. If it is decided that the poor performance results from a change in our standards, those standards will be explained to you and help will be offered to get you to conform to the standards.

4. Should you show no (or insufficient) improvement over the reasonable period agreed with you, a formal interview will be arranged between you and your manager/supervisor. The aims of this interview will be to:

·         Identify the clause(s) of the poor performance

·         To determine what, if any, remedial treatment (e.g. training, retraining, support, etc) can be given

·         Clearly explain the shortfall between your performance and the required standard

·         Obtain your commitment to reaching that standard

·         Set a reasonable period for you to reach the standard and agree on a monitoring system during that period, and confirm to you what will happen if that standard is not met.

·         The outcome of this interview will be recorded on writing and a copy will be given to you.

5.  At the end of the review period a further formal interview will be held, at which time:

1. If the required improvement has been made, you will be told of this and encouraged to maintain the improvement.
2. If some improvement has been made but the standard has not yet been met, the review period may be extended.
3. If there has been no discernible improvement, it will be explained to you that you have failed to improve. Consideration will be given to whether there are alternative vacancies that you would be competent to fill. If there are you will be given the option of accepting such a vacancy (which maybe at a lower salary level) or being dismissed.
4. If such vacancies are available, you will be given full details of such vacancies, in writing, before being required to make a decision.
5. In the absence of suitable alternative work, you will be told that there is no alternative but to dismiss you. You will be invited to give your views on this before the final decision is taken.
6. Your dismissal will be confirmed in writing.
7. You may appeal against your dismissal in writing, stating the reasons for your appeal. When possible, your appeal will be heard be a more senior manager. The appeal must be made within 5 working days of the date of the confirmation in f. above.

CAPABILITY- PROLONGED ABSENCE

All prolonged absence from work and its effect on departments will be kept under review.

a)    The Company will contact the employee to ascertain their current condition and prospects of returning to work. This discussion may take place at the workplace but if the employee is not yet mobile, the employee may be visited at home.

b)    If these discussions do not clarify the position, the Company will ask for a report from the employee’s doctor stating when the employee will be fit to return to work. Or the Company may also ask the employee to undergo a medical examination by a Company nominated doctor.

Once all reliable medical evidence has been obtained, a decision about the employee’s future will be made. If dismissal is a possibility, the following factors will be considered:

·   the nature of the illness

·   whether the illness is likely to recur

·   the length of absences and intervals of good health (in the case of intermittent absences)

·   how essential it is for the particular employee to do the work in question (e.g. if the

   employee plays a key role there may be a significant pressure to replace him/her)

·   has a risk assessment (if appropriate) been carried out

·   are there any opportunities for re-deployment

·   the impact of absences on colleagues

·   the contractual period of sick pay entitlement

·   how viable it is, both practically and economically, to hire temporary staff to perform the employee’s duties until he/she is capable to return

·   a thorough review of the employee’s personal circumstances

·   whether it has been made clear to the employee that a possible decision regarding dismissal is imminent

·   any other relevant contractual provisions e.g. Permanent Health Insurance or similar provisions.

c) Having considered medical reports and Company requirements, before any decision to dismiss is taken the employee will be given the opportunity to make representations. If the employee is unable to attend personally, a representative may attend in his/her place.

d) If the employment contract is to be terminated, full notice entitlement will be given. If recovery seems possible during notice the Company reserves the right to reconsider its decision to dismiss, but does not undertake to rescind its decision.

e) Generally, no decision to dismiss will be taken until you have exhausted your right to contractual sick pay.

f) The employee should be advised of the right of appeal which should be submitted within  5 working days.

JACS/July 2008