Contact your Parish Council
MAIDSTONE BOROUGH COUNCIL
EMPLOYMENT DEVELOPMENT PANEL
22 NOVEMBER 2010
REPORT OF HEAD OF HUMAN RESOURCES
Report prepared by Patricia Bax, Senior HR Officer
1. HR Policy Revision - Capability Policy
1.1 Issue for Decision
1.1.1 To consider the revision of the Council’s Capability policy which will give greater clarity to both employees and managers about the process for managing poor performance.
1.2 Recommendation of Head of Human Resources
1.2.1 That the revised Capability policy (appendix I) be agreed to go forward to consultation with trade unions.
1.2.2 That the Head of Human Resources is given delegation to consult with trade unions to agree the policy.
1.3 Reasons for Recommendations
Capability Policy
1.3.1 It is best practice to have clear policies that everyone in the organisation can understand and adhere to. This avoids future conflict where employees do not think that they have been treated fairly.
1.3.2 The spirit and intent of the revised policy is consistent with the existing policy however the current procedure to be followed when the capability processes need to be applied is extremely vague. The revised policy sets out the steps in a clear way.
1.3.3 The HR policies are being reviewed alongside those of Swale Borough Council who have recently adopted the Maidstone policies for Discipline and Grievance. The existing Swale Borough Council policy on Capability was felt to be clearer than the current Maidstone version and it has therefore been used as the starting point for this policy revision. A consistent approach to policies makes it easier for managers that have staff groups in both organisations and as MKIP develops it is a declared aim to increase this consistency.
1.4 Alternative Action and why not Recommended
1.4.1 The Employment Development Panel could continue with the existing Capability policy but this does not adequately set out the necessary procedural steps.
1.5 Impact on Corporate Objectives
1.5.1 This supports the People Strategy and managing performance in the organisation.
1.6 Risk Management
1.6.1 ACAS support the view that organisations should have clear policies and procedures in place and this would be viewed favourably should any employees instigate claims in an employment tribunal against MBC.
1.7 Other Implications
1.7.1
|
1. Financial
|
X |
|
2. Staffing
|
X |
|
3. Legal
|
X |
|
4. Equality Impact Needs Assessment
|
X |
|
5. Environmental/Sustainable Development
|
|
|
6. Community Safety
|
|
|
7. Human Rights Act
|
|
|
8. Procurement
|
|
|
9. Asset Management |
|
1.8 Relevant Documents
1.8.1 Appendices
Appendix I - Draft Capability Policy
Appendix II – Equality Impact Assessment
1.8.2 Background Documents
None
APPENDIX 1
MAIDSTONE BOROUGH COUNCIL
CAPABILITY POLICY
1: Introduction
1.1 Performance Management is the process by which an organisation focuses the work of its employees towards achievement of its goals. It requires clear direction, a shared sense of purpose, the best use of resources, an atmosphere of open, honest communications and a system for managing the performance and development of its employees. The Council believes that these principles create a culture where employees are committed and motivated to achieve objectives and ultimately the goals of the Council.
1.2. It is the responsibility of every employee to maintain an adequate standard of competence at work. However, there may be times when an employee’s ability to perform their duties to the required standard may give cause for concern and action is required. In these circumstances, this procedure should be followed.
1.3. The standard against which an employee’s performance will be measured is set by their Line Manager, Head of Service or Director in accordance with the reasonable requirements of the post. This standard will be fully explained and agreed with the employee:-
- When they commence employment
- When changes in working practices occur
- At regular reviews of performance under the Performance Review Scheme.
1.4. The following examples of good management practice should ensure that employees understand what is required of them and will minimise the need to apply this Capability Policy.
· effective recruitment and selection process;
· accurate job descriptions and employee specifications;
· induction and training identified through individual the Training Needs Analyses;
· setting of sound realistic objectives;
· regular performance reviews.
2: Procedure
2.1. Where this procedure is used individual circumstances will always be considered, including factors such as:-
· the requirements of the post
· the impact of changes in the workplace
· the employee’s length of service
· personal circumstances
· previous performance record.
2.2 No employee will be dismissed without prior warning that their performance requires improvement unless the poor performance amounts to gross incompetence, for example, performance that seriously damages the Council’s credibility. A decision to dismiss can only be made by a Director or the Chief Executive after a formal hearing.
3: Procedures for Dealing with Poor Performance -Informal Action
3.1. In the first instance, where an employee’s ability to perform the duties of their post is not up to the required standard, the line manager will try to improve the employees performance through informal action. The line manager will meet with the employee in private and talk through any concerns and try to find the reasons for the poor performance. The line manager and the employee should agree a way forward to achieve the required standard and a time-scale for improvement.
3.2 The line manager will keep a note of the meeting and agreed actions, copied to the employee, so that both are clear about what needs to happen. The line manager will monitor the employee’s progress, regularly during the review period and at the end of the agreed time-scale; meet with the employee to provide them with feedback on their performance.
3.3 At this informal stage, representation of the employee by a trade union representative or work colleague is not normally appropriate as it forms part of normal management action.
N.B. Ill-health as a factor in any case of poor performance should be considered and advice sought from the HR Section.
4: Formal Action – Capability Meeting
4.1 Where informal action has not resolved or improved the employee’s performance, the manager should start formal action using this Capability Procedure in consultation with HR and arrange a Capability Meeting.
4.2. The Manager will:-
· Notify the individual concerned, in writing, giving at least 5 working days’ notice, to attend a Capability Meeting at a defined place and time within working hours and describing the work performance issues to be discussed.
· Advise the individual that they may be accompanied by a Union representative or a work colleague of their choice and produce documents relevant to their circumstances.
· Advise the individual of their rights under this procedure. This will be done by supplying the individual with a copy of this Procedure at the time of the letter notifying them of the Capability Meeting.
4.3 A member of HR will be at the meeting to make sure the procedure is followed and to offer guidance of its application to both parties.
4.4. The purpose of the Meeting is to establish the nature of the poor performance, what steps have already been taken to seek an improvement, any mitigating circumstances - personal or health, and the likelihood of improvement. The employee must be given every opportunity to state their point of view during the discussion so that any new factors can emerge. Witnesses may be called to assist in the analysis of the situation.
4.5. Where the poor performance is identified during the meeting as resulting from a lack of ability or ineffectiveness, the Manager should agree with the employee a specific action plan for improvement. A copy of the action plan must be given to the employee in writing within 5 working days of the meeting. The action plan will detail:-
· the required standard of performance to identified targets;
· a realistic time-scale for improvement, taking into account the employee’s length of service and particular problems;
· the training and support available;
· a plan of interim review meetings with the employee;
· the method of monitoring progress.
4.6 At the end of the agreed time-scale in the action plan, a review meeting must be held between the Manager, HR, the individual and their trade union representative or work colleague.
4.7 If the employee has achieved the improvement in performance as outlined in the action plan, this will be confirmed at the meeting and in writing within five working days of the meeting. A copy will be kept on the employee’s file for a period of six months.
4.8 If the employee has not reached the required standard, consideration should be given to an extension of the action plan, an alternative action plan, or retraining of the employee to meet the performance targets. A copy will be kept on the employee’s file for a period of six months.
4.9 If, after or during this further period, it has been identified that the required standard of performance is not being achieved then termination of employment may be the only option. If this is the case, the manager should pursue further formal action through a Capability Hearing.
5: Formal action – Capability Hearing Procedure
5.1 The Capability Hearing will be ‘chaired’ by a Head of Service or Director, accompanied by a member of Human Resources. The Chairperson will:-
(a) Notify the individual concerned, in writing, giving at least 5 working days’ notice, to attend a Capability Hearing at a defined place and time within working hours and describing the work performance issues to be discussed.
(b) Advise the individual that they may be accompanied by their Trade Union representative or a work colleague of their choice and that they may call witnesses and produce documents relevant to their circumstances at the meeting. If their Trade Union representative or work colleague cannot attend on the proposed date, the individual can suggest another date, so long as it is reasonable and no more than five days after the date originally suggested.
(c) Advise the individual of their rights under this procedure. This will be done by supplying the individual with a copy of this Procedure at the time of the letter notifying him/her of the Capability Hearing.
5.2 The Chairperson should open the meeting by stating the purpose and the procedure to be followed and ensuring that everyone knows who is present. There will be an HR Officer present who will produce a written record of the meeting and advise on procedural matters if required.
5.3 The management representative should then put the case against the employee in the presence of the employee and their representative. The case will be presented in writing 5 days before the date of the hearing. No other performance issues other than those described in the letter notifying the individual of the hearing are to be discussed.
5.4 The employee (or their representative) has the opportunity to ask questions of the management representative and the witnesses on the evidence given. Wherever possible, agreement should be reached between the parties on what took place.
5.5 The Chairperson has the opportunity to ask questions of the management representative and witnesses.
5.6 The employee (or their representative) presents their response in the presence of the management representative. Any supporting witnesses make their statements.
5.7 The management representative has the opportunity to ask questions of the employee and any witnesses on evidence given.
5.8 The Chairperson has the opportunity to ask questions of the employee and their witnesses.
5.9 The management representative and the employee (or their representative) have the opportunity to sum up their cases if they so wish.
5.10 The management representative, the employee and their representative and witnesses withdraw.
5.11 The Chairperson and member of Human Resources will deliberate in private, only recalling the management representative and the employee and/or their representative to clear points of uncertainty on evidence already given. If recall is necessary, both parties are required to return notwithstanding only one is concerned with the point giving rise to doubt.
5.12 If more time is needed to consider the matter or further investigations are necessary the Hearing should be adjourned and resumed later. This should be confirmed in writing at the earliest opportunity if the adjournment is to last more than 24 hours.
5.12 Whilst the officer responsible for deciding the action to be taken is considering the evidence presented, no party directly involved on either side shall be present.
5.13 The Chairperson will either announce their decision to the management representative and the employee and their representative personally If the decision is given orally, it will be confirmed in writing no later than five working days after the Hearing. A copy of the letter will be sent to the employee's Trade Union representative. The written confirmation will explain:-
(a) The decision as to what action is considered appropriate, stating reasons for the decision.
(b) The form which the action will take and the timescale which must be reasonable;
(c) The employee's right of appeal.
5.14 Where appropriate to the circumstances of the case, alternatives to dismissal will be considered e.g. demotion/redeployment. Any options will need to be considered against the impact on teams, availability of posts and resources within the organisation at that time.
6: Appeals
6.1 An employee may appeal against the decision of the Head of Service or Director within ten working days of notification to them of the relevant decision. The appeal shall be lodged in writing to the HR Officer setting out the grounds of appeal.
6.2. In cases of non dismissal, where the appeal is against a decision of a Head of Service or Senior Manager, the appeal will be heard by an Appeals Panel chaired by a Director and a senior member of Human Resources. In cases where an appeal is against a dismissal decision made by the Head of Service or Senior Manager, the appeal will be heard by an appeals panel chaired by the Chief Executive accompanied by 2 elected members. (Members will be the Leader and Leader of the Opposition or nominated representatives).
6.3 The Employee shall be given notice in writing at least 5 working days in advance of the time and place of the Appeal Hearing and shall be allowed to be represented by their Trade Union representative or work colleague of their choice. They shall be entitled to call witnesses and produce documents relevant to their case at the hearing.
6.4. With the written notice to the employee and members of the Appeals Panel, a written report should be submitted setting out the facts relating to the individual’s on-going capability/poor performance, the action taken and the reasons for that action. The report will include all documents provided at the original capability hearing together with any minutes and copies of any written documentation provided at the conclusion of the original capability hearing. A copy of the report and related documentation will be made available to the employee and representative at least 5 days before the hearing
6.5. In dismissal cases The Appeals Panel will be advised on procedural matters by the Head of Human Resources. The latter will also operate as the Secretary to the Panel and prepare a written record of the proceedings.
7: Accessibility
7.1 If any aspect of the capability procedure creates difficulty on account of any disability, or if assistance is required because English is not the first language, this should be raised with the HR Officer, who will make appropriate arrangements.
Appendix II – Equality Impact Assessment – Capability Policy
|
|
Identify the aims of the policy/service/function and how it is implemented. – Capability Process |
||
|
|
Key questions |
Answers / Notes |
Actions required |
|
1.1 |
Is this an existing or a new policy function? |
New policy |
|
|
1.2 |
What is the aim, objective or purpose of the policy/service/function? |
The aim of the policy is to help and encourage all employees to achieve and maintain acceptable standards of performance. To encourage improvement in individual capability and not be viewed as a means of imposing sanctions. |
|
|
1.3 |
What outcomes do you want to achieve with this policy and for whom? |
Line managers to be confident and knowledgeable to intervene when staff fail to adhere to minimum standards of performance. Staff to be confident that the policy is applied clearly and transparently. Process and outcome to be fair and consistently applied. |
Ensuring staff have the skills to carry out the Capability process – staff briefing/training may be required. |
|
1.4 |
Who is the policy/function being aimed at? |
All staff at the Council. Trade Unions to understand their role within the procedures.
|
|
|
1.5 |
Who defines or defined the policy/function? |
Consultation will be with the Trade Unions, Management Team and the Employee Development Panel with Members.
|
|
|
1.6 |
Who implements the policy/function? |
Line managers with support from HR. Senior Managers at Capability panels and the CEO at appeal process.
|
|
|
1.7 |
How do these outcomes meet or hinder other policies, values or objectives of the public authority ? |
All areas of the Councils business require members of staff to perform their role to an acceptable standard. |
|
|
1.8 |
What factors or forces are at play that could contribute or detract from the outcomes identified earlier? |
Detract
Contribute
|
Need to ensure staff and managers have been provided training/briefing on the new policy in order to apply it effectively and fairly.
To look at providing the policy in different formats if it seen to be necessary. |
|
1.9 |
Taking the nine strands of equalities is there anything in the policy that could discriminate or disadvantage any of these groups? |
The monitoring of Capability cases indicates there is no discrimination as it follows the profile of the organisation. The procedure takes into account the needs of the individual and is sensitively applied. |
Managers will need to be alert to the possible of impact of factors outside the work place that could be contributing to poor performance to ensure that there is no discrimination by association. |
|
1.10 |
From your perspective, how is the policy actually working in practice for each equalities group? |
As this is a new policy, the same principles need to be applied as the old policy to ensure best practice is applied.
|
|
|
2 |
Consideration of available data, research and information
|
||
|
|
Key questions |
Answers / Notes |
Actions required |
|
2.1 |
What do you already know about who uses and delivers this service? |
Line managers use the service with HR support within the process. Line managers need training and understanding of the policy and process to ensure it is applied effectively. |
|
|
2.2 |
What additional information is needed to ensure that all equality groups’ needs are taken into account? |
The needs of staff for example literacy skills, communication needs |
|
|
2.3 |
How are you going to go about getting the extra information that is required |
Through line managers and HR system
|
|
|
3 |
Formal consultation
|
||
|
|
Key questions |
Answers / Notes |
Actions required |
|
3.1 |
Who do we need to consult with? |
Trade Unions, line managers, management team and the employee development panel
|
|
|
3.2 |
What method/form of consultation can be used? |
Will be sent by e-mail to line managers for comments and presented to the other panels.
|
|
|
4 |
Assessment of impact
|
||
|
|
Key questions |
Answers / Notes |
Actions required |
|
4.1 |
Have you identified any differential impact and does this adversely affect any groups in the community? |
None
|
|
|
4.2 |
If there is an adverse impact can it be avoided, can we make changes, can we lessen it etc? |
N/A
|
|
|
4.3 |
If there is nothing you can do, can the reasons be fairly justified? |
N/A
|
|
|
5 |
Consideration of measures that might mitigate any adverse impact as well as alternative policies that might better achieve the promotion of equality of opportunity. |
||
|
|
Key questions |
Answers / Notes |
Actions required |
|
5.1 |
Does any of the changes in relation to the adverse impact have a further adverse affect on any other group? |
None
|
|
|
INTERNAL PROCESSES FOR THE ORGANISATION
|
|||
|
6 |
Making a decision in the light of data, alternatives and consultations
|
||
|
|
Key questions |
Answers / Notes |
Actions required |
|
6.1 |
The organisations decision making process |
To be agreed with trade unions following consultation. Approval will then be required by the management team and the employee development panel
|
|
|
7 |
Monitor for adverse impact in the future and publication of results of such monitoring
|
||
|
|
Key questions |
Answers / Notes |
Actions required |
|
7.1 |
What have we found out in completing this EqIA? What can we learn for the future? |
Found that the policy needs to apply to the needs of all staff at the Council. Ensuring that the policy is available in different formats for staff |
|
|
7.2 |
Who will carry out monitoring? |
HR team
|
|
|
7.3 |
What needs to be monitored? |
The consistency and fairness of the outcomes. To address any concerns highlighted by the monitoring of figures
|
|
|
7.4 |
What method(s) of monitoring? |
Feedback from trade unions and monitoring from the HR system
|
|
|
7.5 |
How will the monitoring information be published? |
The information will be sent to the Community Development and Social Inclusion Manager. |
|
|
8 |
Publication of results of the impact assessment Intranet |
||