Capability Policy – Performance
This policy is effective from 1st October 2015.
1. Purpose
This document sets out the University’s procedures to address capability in relation to
poor performance.
The purpose of the procedure is to be supportive rather than punitive, and is to help
and encourage staff members to achieve and maintain acceptable standards of
performance and to ensure the consistent and fair treatment of all staff members.
If a capability issue is due to long-term absence the University’s Capability Policy Long-term Absence, will apply.
If unsatisfactory performance is deemed to be a result of conduct, the University’s
Disciplinary Procedure will apply.
2. Application of Policy
This Policy applies to all employees of Edinburgh Napier University, collectively
referred to in this Policy as ‘staff’ or ‘staff member’.
3. Variations to this Policy
Edinburgh Napier University reserves the right to terminate, replace, or vary this
policy from time to time.
4. What is Capability?
The fundamental distinction between capability and conduct is where the staff member
“can’t do” (capability) their role versus “won’t do” (conduct) their role, the latter implying
some degree of control and choice.
Either the staff member or the Line Manager can raise concerns regarding capability.
Capability issues can occur at any time in a staff member’s career. Some examples
include: where a staff member is newly appointed in a role through an internal /
external recruitment and selection process or where redeployment has occurred; and
where management or the staff member find that an individual is unable to achieve
the expected standards required of the job. Alternatively, it can occur when someone
has previously met the required standard but is no longer able to do so.
Consideration will be given to whether poor performance may be related to a disability
and, if so, whether there are reasonable adjustments that could be made to the
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individuals working arrangements including changing their duties or providing
additional equipment or training.
If at any stage the staff member freely acknowledges that they cannot achieve the
reasonable standards expected of the role, then discussions should take place
between the Line Manager, staff member and relevant HR Client Partner to focus on
what options or alternative action can be taken i.e. Identify alternative roles at the
University, retraining, demotion or any other reasonable workplace adjustments. The
outcome of these discussions would be confirmed in writing.
5. Capability - Poor Performance
Poor performance is when a staff member completes their role below the standard
expected of their role and grade.
The University requires all staff members to achieve and maintain effective standards
of performance and ensure consistent and fair treatment for all staff members
experiencing difficulties in performing to a satisfactory standard.
Staff members have a responsibility to perform to a satisfactory level. Where they are
clearly not meeting the terms and conditions of their employment or where there are
significant gaps in their skillset, and should be given support and a reasonable
timeframe in which to achieve the required standard.
6. Informal Process
Line Managers are responsible for addressing poor performance issues when they
arise and for taking appropriate action, in line with early intervention principles. It is
also the responsibility of the Line Manager to ensure that staff members have a
manageable workload and that agreed objectives are realistic.
Where possible, the University aims to address concerns regarding poor performance
on an informal basis prior to commencing a formal procedure.
Informal action should be taken by the appropriate Line Manager by utilising the
University’s Employee Support Procedure and making use of the support mechanisms
available to staff through the University’s Employee Assistance Programme provider
Workplace Options, where appropriate.
The Employee Support Procedure is used to address issues quickly and can help
resolve problems before they need to be addressed in a more formal way. The
purpose of this procedure is to help staff improve their own performance to a
satisfactory level, by providing them with the required support to improve.
7. Formal Process
If the University’s informal processes have been exhausted, capability issues will be
progressed to a formal capability process.
The decision to commence a formal capability process will be made by the relevant
Line Manager, in consultation with their HR Client Partner and based on all the
evidence available at the time, including employee support paperwork.
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8. Right to be Accompanied
Once the formal process has commenced, employees have the right to be
accompanied to all formal meetings. Employees can be accompanied by a suitable
work colleague or Trade Union representative.
9. Invitation to Capability Hearing
The staff member will be invited to attend a formal capability hearing.
The staff member will be given at least five working days’ notice of a capability hearing
from the date of receipt of the invitation letter (this should be assumed to be the day
after the letter was sent due to all employee relations letters being sent special
delivery).
All evidence / documentation will be provided to the employee before the meeting
along with their invite letter.
The staff member’s invite letter will include information about the potential outcome,
i.e. up to and including termination of employment on the grounds of capability.
10. Attendance and Right of Delay
Attendance at the hearing must be prioritised (the staff member’s Line Manager will
make arrangements to enable this). If one party seeks to delay the timing of the
hearing, a full explanation for the delay must be provided to the chair for consideration
within two working days of the schedule time. Any requests for delay within two
working days will not normally be accepted. However, any reasonable exceptions will
be considered by the chair. If the staff member fails to attend a re-scheduled hearing,
the hearing may take place in their absence
11. Capability Hearing
The capability hearing panel will be constituted by two Grade 8 or above Managers.
A HR Client Partner will be in attendance to offer procedural advice and a HR Adviser
will be in attendance to take notes.
Both the Line Manager and staff member will be present and be given the opportunity
to present their cases. The Line Manager and those chairing the hearing will receive
a copy of any documentation in advance of the hearing.
12. The Aim of the Hearing
The aim of the hearing is to:




Set out the required standard that the University considers has not been met
Establish the cause of the poor performance
Identify whether there are additional measures such as additional training or
supervision which may improve performance
Targets and timelines for improvement (where appropriate)
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13. Decision
Written notification of the outcome of the hearing will be sent to the staff member by
the chair of the panel normally within five working days or as soon as is reasonably
practicable. The letter will inform the staff member of:


The outcome of the hearing
the right of appeal
List of potential outcomes:





No action required
Recommendation for further informal resolutions (extended employee support,
training, counselling, another attempt at identifying an alternative role at the
University)
Demotion to a lower graded role (where business needs permit).
A formal improvement note (warning) and a timeline in which improvements are
required.
Termination of employment on the grounds of capability (full notice will be paid in
these cases)
14. Failure to improve following receipt of a formal improvement note
If a staff member’s performance remains at an unsatisfactory level following receipt of
a formal improvement note (and completion of the allocated period), they may be
invited to a further capability hearing, of which the potential outcome of the capability
hearing may be termination of employment on the grounds of capability
15. Appeals
Staff members have the right to appeal the decision of the capability hearing. Staff
members must lodge their appeal, in writing within 10 working days of the date of
receipt of the decision letter (this should be assumed to be the day after the letter was
sent due to all employee relations letters being sent special delivery), clearly stating
the reasons for their appeal and the name of any Trade Union representative or
appropriate work colleague they will be accompanied by at the appeal hearing.
The appeal will be dealt with impartially by a manager who has not previously been
involved in the case normally within 10 working days of the appeal being received.
There is only one level of appeal within the University and therefore, the decision made
following the appeal hearing will be final.
At the appeal hearing the staff member or their Trade Union representative (on behalf
of the staff member) will be invited first to present their grounds for appeal.
Where appropriate, the manager who made the decision at the capability hearing will
be in attendance to present the management case and / or respond to any questions.
The managers hearing the appeal may decide to:
 uphold the capability hearing decision
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 recommend other appropriate action
 uphold the appeal
The decision will be confirmed in writing (normally) within five working days of the
conclusion of the appeal hearing.
16. Related Policies
Employee Support Procedure
Disciplinary Procedure
Disability Leave Policy
Capability Policy - Long-term Absence
17. Questions
If a staff member is unsure about any matter covered by this policy, please contact
HR&D.
Definitions
Disability
Under the Equality Act 2010 (the Act), a person is disabled if
they “have a physical or mental impairment that has a
substantial and long-term negative effect on their ability to do
normal daily activities. ‘Substantial’ means that it must be
more than minor or trivial, e.g. it takes much longer than it
usually would to complete a daily task such as getting
dressed is covered by the Act. ‘Long term’ means 12 months
or more.
Policy version and revision information
Document Control Information
Title
Capability Policy – Performance
Version
V4.0
Author
Human Resources and Development
Date First
Approved
1st October 2015
Last Review Date
1st October 2015
Review Frequency
Two years
Scope
All University staff members
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Change Record
Date
Author
Version
Change reference
26/08/15 TG
1.0
Initial draft for review/discussion - re-tabled
01/08/15 TG
2.0
Department feedback
08/08/15 TG
3.0
Legal feedback
02/10/15 TG
4.0
Feedback from TU’s
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