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Sickness & Capability Procedure

Introduction
Monitoring and dealing with poor performance is one of the biggest headaches for managers.

Dealing with these issues can be difficult, and it's imperative you get it right - all the way through. For those reading this who do not have a well versed HR Manager, we've produced this guide on the relevant issues. However, this can be a complex and risky area and we strongly recommend that you take legal advice in order to reduce the possibility of a claim. This applies particularly if the capability issues relate to disability, pregnancy or other statutory rights.

First Steps
Before you start dealing with poor performance formally, it is always best to try and resolve matters informally first. Can you have a chat with the employee about areas which are concerning you? In many cases this approach will nip the issue in the bud. It may be, for example, that the employee is feeling out of their depth, or that they would benefit from some training on a particular area.

It is also important to deal with issues as early as possible. When you have a new member of staff, you can use a probationary period, during which both parties can decide whether the new role is working out. The probationary period is a key time to examine any concerns - and if, towards the end of the probationary period, you are still not 100% happy, you can extend the probationary period. There is no maximum length of a probationary period but in practice, unfair dismissal rights accrue after 51 weeks so you need to make a decision before then as to whether the employee is right for your business.

Capability procedure
As with any process for dealing with staff, it is important that the employer is seen to act fairly. Although ultimately an employee can be dismissed for poor performance, they should be given a series of warnings before dismissal, and between the warnings there needs to be sufficient time for the employee to have an opportunity to improve.

An employee has a statutory right to be accompanied to any meetings where the outcome may be a warning (or other penalty). The companion can be a colleague or a trade union representative, regardless of whether a trade union is recognised by the employer. It is important to advise the employee of their right to be accompanied as failure to allow a companion can give rise to a Tribunal claim in itself.

The employee should be invited to a meeting in writing and the letter should explain the reason for the meeting, i.e. to discuss concerns about performance - these should be specified as far as possible. At this meeting, the line manager will agree performance standards with the member of staff, and a time period (for example, three months) over which improvement will be expected. They will also agree how the individual's performance will be monitored.
If the individual's performance improves adequately over the timescale, then the process will terminate at this stage. If performance remains unsatisfactory, then the procedure will be invoked again, and a further meeting will be needed.

The meeting should cover:

The outcome of the meeting is likely to be:

The employee should be advised of the outcome in writing - they should also be given a right of appeal against each stage of the process.

If poor performance continues, the process should be repeated. The time scale for improvement will depend on the nature of the duties and responsibilities of the employee concerned and the seriousness of the complaint(s). If the conclusion of the second hearing is that performance has not sufficiently improved and that there is still evidence of incapability despite support and prior warnings, a further warning should be issued. Normally the process will involve a series of warnings: first warning, second warning, final warning, with the final stage being dismissal.

Managing performance can be difficult for all parties and it is certainly time consuming to go through the process from start to finish. For that reason, it is best to try and use other strategies to manage employees where possible.

Help and Advice
Due to the complex and delicate nature of Sickness and Capability procedures, Pure Employment Law are offering users of the Transport's Friend website free initial advice. You can contact us on 01243 836840 or visit our website www.pureemploymentlaw.co.uk

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