Formal action

Where the practice manager believes that a more serious case of lack of capability exists, or where persistent poor performance has not responded to informal action, then the formal procedure should be invoked.

There are three main stages to the formal procedure:

– first review meeting

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– final review meeting

– dismissal/capability transfer.

Within five working days of each of the above stages, the practice manager must write to the employee.

The letter should state:

– that the employee is receiving a formal written warning in line with the capability policy

– the areas where improvement is required

– the level of improvement required and/or the required standard that must be achieved

– the timescales within which there should be an improvement

– the measures that will be made available to ensure that the employee can reach this level, eg training, supervision, mentoring etc

– any other action that will be taken by the manager or employee to help resolve the situation

– the consequences if performance does not reach a satisfactory level (ie further written warnings, a capability transfer or dismissal).

The practice manager should include with the letter a detailed file note recording what was said at the meeting.

The employee should be asked to sign that they agree both with the contents of the letter and the file note.

If the employee does not agree with either document, she/

he should raise their specific concerns within three working days of receipt. Any agreed amendments to the note should then be made within three working days of the concerns being lodged.

A signed copy of the letter and file note will be kept on the employee’s file together with any correspondence or emails relating to the meeting. The employee will be entitled to have access to this information in line with the data protection regulations.

5.3.1 First review meeting

A letter from the manager outlining the date and time of the meeting must be sent to the employee at least five working days in advance of the meeting.

The letter must include:

– the reason for the meeting

– the name of the partner who will conduct the meeting – the employee’s right to be represented by a trade union

representative, friend or colleague who may speak on their behalf

– copies of any documentation to be used at the meeting – a copy of the capability procedure.

At the meeting, the partner should:

– be accompanied by the practice manager/partner – set out the standards of work performance expected of

the employee in the areas under consideration

– explain how the employee’s performance has fallen short of what is required and the impact of this on service delivery

– confirm that any informal measures have failed to improve performance to the level required and that the poor performance is due to a lack of skills, abilities or competencies

– provide the employee with an opportunity to explain and/

or give reasons why the manager should not consider that performance has been poor

– discuss the way forward and ensure that a suitable plan of action is drawn up. This should include specific, measurable and achievable targets

– set a review date which allows for regular updating to the employee on progress being made and gives a reasonable period of time for the employee to improve and show that they are capable of performing all duties of the job – consider the options available for enabling the employee

to improve to the required standard such as further or additional training; closer supervision for a limited period;

an adjustment of duties consistent with the needs of the

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practice which do not change the general character of the job; or access to occupational health counselling

– explain that failure to reach the required standard during the review period may lead to further formal action, including possible termination of employment on the grounds of capability.

The practice should ensure that any further training or assistance offered is made available and that the employee’s progress is closely monitored. Performance should be assessed as objectively as possible and as often as is considered appropriate. The employee should be kept informed of their progress. If either there is no improvement or if improvement is failing to reach an acceptable level, the manager should tell the employee how they are not meeting requirements and should give them an opportunity to explain.

If performance is assessed as satisfactory at the end of the review period, the manager should inform the employee of the outcome of the review and confirm this in writing.

If performance has not reached the required level at the end of the review period (or earlier if there is clearly no improvement or a deterioration), the partners should take a view to either:

– holding a further formal meeting and extending the review period; or

– holding a final review meeting.

5.3.2 Final review meeting

The procedure followed at this stage should mirror the procedure for the first review meeting.

If the partner(s) consider that there is reasonable further action that could be taken to improve the employee’s performance then a suitable plan should be drawn up and implemented. The employee should be given a final caution at this stage and advised that failure to reach a satisfactory level within the specified time frame could ultimately result in either dismissal or a capability transfer.

The partner(s) should also consider at this stage if there are other means of resolving this situation, eg alternative employment within the practice. This action should only be taken if the employee accepts that she/he may have a capability problem and says that she/he is willing to be considered for alternative work.

In seeking alternative work, the practice should be sure that the employee will be able to perform the duties of the new job satisfactorily, otherwise there is a risk that the capability problem will be transferred to the new area of work.

Where such work is found, offered and accepted, the rate of pay, grade and other conditions are then applicable to the new post being offered.

5.3.3 Dismissal

Before dismissing an employee on grounds of capability, the practice should have followed the above formal stages of the capability policy. If after a final written warning there continues to be no improvement in the employee’s performance, then a dismissal hearing should be held. At this a partner, if possible one who has not been involved with this process previously, shall interview the employee to give her/him the opportunity to state her/his case. Only after evidence has been heard from both the partner previously involved and the employee, will a decision be made on whether or not to dismiss the employee.

If it is decided to terminate the employee’s appointment under these procedures, the employee shall be provided within five working days, if practicable, with a notice in writing stating:

– the date of termination – the full reasons for termination

– the employee’s right of appeal, how she/he may exercise that right, the time limit for lodging an appeal and the right to representation.

A copy of this letter will be kept on the employee’s personal file.

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5.3.4 Capability transfer

In some cases, a capability transfer may be actioned as an alternative to dismissal. If it is decided to take this course of action, the employee shall be provided with a letter stating:

– the date of the capability hearing – the reason for the capability hearing

– the employee’s right of appeal, time limit and right to representation.

A copy of this letter shall be retained on the employee’s personal file.

5.3.5 Gross incapability/incompetence and suspension In exceptional circumstances there may be cases of gross incapability or incompetence, the seriousness of which may make future employment impossible. One example might be action by an employee, which puts others at serious risk of life and limb injury.

In all such cases, the partners/practice must be satisfied that the situation is not one of gross misconduct, that is a wilful act by the employee. If the circumstances do constitute gross misconduct any action should be taken in accordance with the practices disciplinary procedure.

In some cases, it may be appropriate for the practice to consider suspension. However, it should also be considered whether the alleged gross incapability or incompetence means that the employee cannot be allowed to work on any other duties. If it is possible to find alternative or reduced duties then this should be the preferred option.

If a practice decides that suspension is necessary, the following steps should be taken:

– written confirmation of the reason for suspension within three working days

– the employee’s representative (if applicable) should be notified

– normal pay will be made during the period of suspension – suspension should be reviewed every five working days.

The seriousness of the lack of capability may require that a hearing be convened and this could lead to the employee’s dismissal without prior formal warning.