These are the most frequently asked questions taken from Judicium’s Employment Law ‘Sofa Session’ from the 5th of March with Employment Law & HR Consultants Jenny Salero, LL.B (Hons), L.P.C., Kelly Rayner, LL.B (Hons), QLTT and Suzanne Ravenhall, Chartered MCIPD.
1. Don’t delay
Do not delay in tackling concerns. Although we understand that everyone is short on time and that conversations about poor performance can be difficult, if you do not have the conversation and take steps to support the employee to address this nothing will change.
If you attended our recent ‘Part One’ session on appraisals we highlighted that whilst appraisals are a good time to talk about performance, any concerns that you have should not be held over specifically for these discussions. If you do have concerns these should be raised as soon as is possible with the individual. The same applies to a transition to formal capability – has the short period of review and the interim targets now passed? If so and no or insufficient progress has been made consideration should be given to commencing the formal capability process.
2. Ensure that the concerns have been raised as part of the appraisal process
As part of a fair process, you should not immediately move to a formal capability hearing. Whilst changes were made in around 2012 to the DfE Model Policy on capability, to remove reference to ‘informal capability’ it is it sill best practice to raise concerns informally, within the appraisal process, before launching into a formal capability hearing.
Hopefully, some further support and a conversation with the member of staff will allow for improvements to be made, without the need to resort to formal capability. However, if this is not the case unions will robustly challenge any process where the concerns have not been raised informally, as part of the appraisal process. It is therefore imperative, not only to give the employee a fair opportunity, but also to avoid challenge of any process that the concerns are raised with the individual as part of the appraisal process.
3. Make sure you have evidence!
In order to progress to a formal capability process you will need to have evidence of not only the concerns, but the support that has been put in place during the appraisal process and evidence of where the employee is still falling short.
It may be that as you are moving to the formal stages of the process a particular log of emails needs to be created. It may that more regular observations take place and that notes of all informal review meetings are taken – it is this evidence that will need to be shared with the employee, their representative and any decision maker ahead of a formal capability hearing.
Without ‘hard evidence’ of your concerns you will be unable to progress fairly through a formal process and any good trade union representative will make the process very difficult for you. Therefore, make sure you utilise the appraisal stage to provide support and hopefully ensure that the employee does make the required improvements, but also to ensure that you have a clear bank of evidence if, for whatever reason, you have not been unable to collate this previously.
Questions and Answers
Does the employee have the right to be accompanied?
Technically, from a legal perspective, no, the employee does not have the right to be accompanied. However, most policies and procedures within the education sector allow for this. Therefore, at the formal stage it is likely that the employee will be able to be accompanied by a workplace colleague or trade union representative.
What do I do if the employee says their representative is not available?
Although there is technically no legal right to be accompanied, as most education policies do provide for this, we would suggest that you take the same approach to the meetings at which the employee is entitled to be accompanied (disciplinary and grievance). If the employee’s representative is not available to attend, the meeting can be postponed on one occasion. However, the employee/representative should provide any alternative date within 5 days of the original date proposed.
What evidence do I need for the meeting?
In order to invite the employee to a formal capability meeting you will need to look in detail at your specific policy, which will highlight steps within the appraisal process that should be taken before an employee can successfully be invited to a formal capability meeting (without significant challenge).
This will involve an informal meeting where your concerns about performance are highlighted to the employee. You agree on some short-term targets in respect of your area of concern and some additional support/mentoring/training/time is provided to the employee to try to reach those short-term targets over specified period. If no or insufficient improvements are made regarding performance during this more intense period of appraisal, then you may be able to progress to formal capability. It is a record of these steps i.e. notes of meetings, data, training details etc that will be needed as the evidence of concerns and the steps you have taken to date.
What information should I include in the invitation letter?
Within the invitation letter it is helpful if you can set out a brief chronology of the events leading up to the point of the formal meeting. This will hopefully help to demonstrate to any union representative (if the employee seeks advice) that the concerns have been raised informally, support has been offered and you are moving to a formal process as a last resort.
Within the letter we would suggest alongside the chronology you include details of any short term targets sets, any support put in place and any evidence of the concerns that you have relied upon during the informal discussions that have taken place before moving to a formal process. Again, this helps to evidence that you are not immediately jumping to a formal process.
Depending on the concerns that you have it may also be helpful to include copies of recent, but previous appraisal documents, notes of informal meetings and a copy of the Teachers’ standards if these are relevant.
What should we do if the employee goes off sick?
If the employee is absent from work (this is a very common response to the start of a formal capability process) the capability process will need to be paused. The capability process is intended to provide support for the individual to improve their performance at work and of course, if they are not at work they cannot do this!
Whilst the employee is absent you should provide support in the form of any employee assistance programme, welfare meetings and Occupational Health referrals, with a view to supporting the employee back to work. If the employee cannot return you would then consider progressing to the formal stages of the absence management process.
If the employee was able to return to work, once the employee had settled back into the workplace, the capability process and any additional support can be picked back up again.
What should we do if the employee raises a grievance?
If an employee raises a grievance this does not automatically mean that any formal capability process must stop. This is a very common delay tactic for employees, but does not mean that the process stops automatically. Please do seek advice from us in order that we can consider the specific complaint and whether any changes need to be made to the proposed course of action or whether both processes can continue concurrently. Ideally however, we want to keep both processes moving as delays are not in the best interests of any party.
Can the employee appeal a formal written warning?
Yes, if the employee is issued a first written warning following a formal capability meeting (as this may not always be the case) the employee should be offered the right of appeal, as outlined within the Capability Policy.
Any appeal should ordinarily be heard by a panel of three Governors/Trustees with no previous involvement in the matter.
If the employee receives a written warning is this disclosable on a reference?
During any period in which a warning is live we would expect this to be disclosed on a reference. Under the School Staffing Regulations, if you are asked about any performance concerns you are required to disclose the concerns within the last two years that gave rise to the formal procedure, the length of the process and the outcome. Ensure that you do not rush any reference requests and provide information that is true, fair and accurate.
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