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NOTE: There were 3 speakers identified in this transcript. 

0:00:05 - Helen
Hello and welcome to the HR edit, the podcast from South East Employers taking a look at those common and often tricky HR questions. Today I'm joined by Michelle and Sarah and we're going to be discussing capability. So, Michelle, let's kick off with the obvious question what is capability? 

0:00:21 - Michelle
So capability is around managing a person's ability to do the job, and it comes down to having the skills and knowledge to be able to meet the requirements. 

So when we're talking about managing capability, we're really talking about the process of supporting an employee to improve to the required standards of performance that is needed for their job. 

So, for example, if someone needs to use a particular piece of software for their job, they've not used it before. They wouldn't be able to do that job easily. They might be able to muddle through, they might be able to work it out, but it's far more effective to actually provide training for them that will then enable them to access that system effectively and efficiently to be able to do their job. When we're talking about capability in terms of case management, we are talking about an individual's ability to do their job dropping below the expected standards, and that could be because they don't have the right knowledge, the right skills. It could be that something has changed within that job. That means that they no longer have the skills that are required for that particular role, and when we start to notice that the performance is dropping off, then it's about having a conversation with the employee and trying to understand what's going on and what support needs to be put in place. 

0:01:56 - Sarah
When you talk about capability, Michelle, and you talk about different situations and perhaps some adaptations or something that people need to do, their job or their situation has changed, does that cover things like health issues? If somebody now has a new health issue that perhaps they didn't have before and they couldn't do their job to the required standards, as you said, would that be a capability issue? 

0:02:18 - Michelle
So it really depends on the situation. Normally, when it's the health that's causing the person not to be able to do the job, we would manage that under sickness absence management procedures and we covered that off in a podcast last season. So there may be occasions where there's a new health condition but it's not the health condition itself that is preventing the person from actually fulfilling the duties of the role. So you may have a situation where, although it's the you know there's a new health condition, actually you are looking at having to retrain or sort of provide some additional support to get that person back up to standard. So in those cases you may well have a capability case. But normally when health is involved, it's a sickness absence management, reasonable adjustments and managing it through that sort of process. 

0:03:12 - Helen
So if you do notice someone isn't meeting the required standards of their role, what is the process that you take for capability? 

0:03:22 - Michelle
So it's very similar to any other management led process that needs to be put in place to support the employee, either to improve their conduct or to improve their attendance. We start off with an informal process. So when there is an issue with a piece of work not being done to the appropriate standard, don't sit it on a pile and go oh, I'll deal with that at one to one next month. Deal with it promptly, have a conversation, talk to the individual about why it's not up to standard, what you expect from them. Ask them what's going on that may be impacting on their ability to deliver to standard. Put any support in place that comes out of that conversation, whether that's training or shadowing someone or just an online YouTube video in how to do something. 

I hate to say it, but YouTube has become a fantastic resource in terms of training around software use. I will freely admit it, I do it myself. If we're looking at a new software package at work, I will go and have a look at some videos to see how it is used. So Power BI, for example, or Dynamics 365, I will go and have a look and go, oh right, that's how I do it. So that's a really cheap, easy way of getting very quick resources in the hands of your employees to support them to be able to deliver to the required standards of the job. 

And then, although it's an informal conversation and we're talking about an informal process at this point you should still be documenting the fact that you've had a conversation and what support you have put in place, and it doesn't have to be particularly detailed. You don't have to keep an official record in the employee's personnel file, but you should record that you've had a conversation about that particular piece of work and if the conversation was well, I need more training or I need to understand the context more. Make a note of that, because if you haven't got those notes that you've intervened and you've tried that informal approach to improving performance, it will be much harder to then move to a formal process that will enable you to put more formal support mechanisms in place and those formal sort of review and monitoring timescales in place. 

0:06:03 - Sarah
It sounds like, Michelle, like the advice that you're often giving is that kind of if you notice something as a manager or, as you know, as an employee about yourself, that if you need the help or you need to highlight something, it's always better to do it informally for a start, but do it quickly, sort of almost not knock it on the head I don't want to say that but get on top of it early, because obviously the early you do something about it, that the better chance of a good and positive outcome for both employee and employer. You know, rather than leaving it until something mounts up but I suppose that's what you know is really important about sort of regular one-to-ones as well with your staff, so that you as a manager, you do understand them as a person, you understand how they work, how they work well, and then, if something is off, something's a bit wrong. 

0:06:51 - Michelle
Absolutely and it is, I mean within all good management practice. It is intervene early because it stops the issue from escalating, whether that is a dispute, someone's having an argument, someone's you know started. Their behaviour is starting to deteriorate in the workplace. The sooner you get in, the more likely you are to prevent it escalating to something really, really serious. You know, in terms of conduct this, you know the if you start to notice that someone's attitude is a bit off with customers. If you intervene quickly you can avoid a situation where that slight standoffishness with customers has become a full-blown stand-up and shout at a customer or, worst-case scenario, you know, some kind of physical assault on a customer. 

So the absolutely, the earlier you get in, the better it is for everybody and the less time it takes to manage. I mean, if you think about, you know, a sickness-absence capability situation, you know, if you start to notice as a manager that your employee is taking a little bit more time off than you would normally expect your team members to take off, you know actually having those return to work conversations. What's going on? How are you feeling? Is there anything we can do? That takes half an hour. But if that then escalates into some long-term sickness for stress or depression. The amount of time that is taken in managing that kind of casework between the line manager, hr, you know senior management it gets really, really costly, just in people time. 

0:08:54 - Sarah
Yeah, yeah, that kind of early intervention can kind of stop all kinds of you know escalations and I mean goodness knows what. But I just think sometimes it's that balance, isn't it? If you've got a good manager, they've got you know, they can manage the service, they can manage the work. That's brilliant. But just as important, if not more so, actually is that people management and the understanding of your staff and how your staff work and all that kind of stuff. And in my time I've experienced a bit of you know both, to be honest, and I certainly, as an employee, I always respond better to the person who has the better people management skills rather than service management skills, and that's the thing. 

0:09:33 - Michelle
I mean, there's this lovely Peter Principle, where you know, the underlying message from the Peter principle is you are promoted to the lowest level of incompetence, and it is you know that you see it all the time. Managers are promoted because they have excellent technical skills, they are the technical expert, and the next, you know expected step is to go up into that line management role. But they're not given the skills. I mean, you know we're talking about capability here. They're not given the skills, they're not given the knowledge about how to actually manage people. Yes, exactly. And so you end up in this situation technically they're brilliant and you know they're a superb planner, or you know a superb solicitor. 

They know their stuff yeah they know their stuff, they know the law, they know you know how to go through the planning application process and all of that kind of stuff. But actually when it comes to the interaction with colleagues that they are supposed to be managing, they're completely out of their depth. Clearly I'm not referring to every planner or everything. 

0:10:57 - Michelle
But you know, and we see it in schools quite a lot. You know the headteachers or the senior leadership team in a school is promoted up through the ranks. You know they're a classroom teacher, they, you know, progress up and up and they take on extra learning responsibilities and then they move into that leadership team where they're actually line managing people. And again, excellent teachers, great results in the classroom. But when they actually have to manage adults it's a different skill set and it's a real struggle to make that transition. 

0:11:32 - Sarah
There's a lot of nuances in people management and I think you have to. I think not necessarily in my case, but I think if you've got a lot of empathy, you have to have empathy in order to manage people and you see that a lot. You do see that a lot in different workforces and I could say I've had the great technical. You know the person who knows their stuff and you just think how on earth am I ever going to get to that level? But then you've got the people who are actually excellent people managers and I find that it's only in my experience and in working in teams that people always respond better to those who people manage. 

0:12:06 - Michelle
Yeah, I would absolutely agree with that. 

0:12:09 - Helen
So what happened when those informal chats don't work? 

0:12:10 - Michelle
Unfortunately, that generally results in you moving into the formal capability procedure. Now every organisation in the public sector will have a separate capability policy. In the private sector it tends to be dealt with under the banner of the disciplinary policy and it's purely because in employment law you either have an employer led process disciplinary sickness, absence, performance capability or you have an employee led process which is your grievances. So you tend to have a grievance policy and a disciplinary policy and it is just that you know the differentiation between who, who initiates the action. So where there is a separate capability policy, it will refer specifically to that performance capability and how to move through the informal process as well as the formal process to improve performance. So when we go into the formal process again, because it's management led, the employee should be invited to a meeting. I would recommend a minimum of five working days notice for that meeting, more if you can, because it just provides the opportunity for them to prepare they, because this is a formal meeting where you will be discussing their performance and their capability within their role. They do have the right to be accompanied by a trade union rep or a workplace colleague, and I know I said when we did the podcast on disciplinary. You know we don't allow lawyers, we don't allow family friends. The same rules apply here. The law permits trade union representative or a workplace colleague. The exception to that is where a disability is present and we might be making a reasonable adjustment. So they might need someone who specifically understands their disability to help advocate for them in this kind of formal meeting around performance in their role. 

One of the critical things is making sure that this process is fair and reasonable for the employee. There should be no surprises in that formal meeting. Any performance that you're raising needs to be in the same vein as the performance issues that you have raised informally Shouldn't necessarily be exactly the same incidents that you're referring to, although you know you may well be referring back to them as another example in a chain of performance that is causing concern. What I would say is avoid bringing in something that the individual will just not be aware of at all. So it's that and another thing type approach. So what you're raising in this form meeting should really link back to the behaviour or the performance issues that you have raised with the individual previously. The next step is to consider any mitigations. So, as in any fair and reasonable process, you raise your concerns with the employee, give them the opportunity to give their side of the story, so you know, for them to explain what's going on that might be affecting their performance, whether that is a lack of concentration because of something that's going on at home, whether that's, you know, a health condition that is starting to impact on their ability to focus on work. And you know, as a manager, you know hopefully you will be aware of most of what's going on. 

You know, in your employee's life. Some people do not bring their whole selves to work. Some people are very careful to leave their personal life at home. But even those people who try and keep a very strict line between the two may find on occasion that home life starts to creep into work. You know, if you think about, you know, a couple of the most stressful things that can happen to someone in you know in their lives the death of a loved one, divorce, moving house. One or other of those is going to impact most people at some point in their working life and, try as we might, we may not be able to leave that at the door every time. 

So it's really important to listen to what the employee has to say and make decisions taking that into consideration. If there is a health condition that is starting to impact on their ability to perform, then you, effectively, you are moving it out of a capability into single substance issue, even if they're not sick. You know, we, we, we recommend that you have a kind of a process for managing health in the workplace, even when the individual is able to attend work on a regular basis, you know, if there's that kind of underlying health issue that's starting to creep in, occupational health are a fantastic resource to make use of, just so that you can understand how to support them with that health condition and that will help to, you know, help them to maintain their attendance at work and hopefully help them to perform to the level that is, you know, required of their role. 

0:17:48 - Helen
Just to jump in quickly, Michelle, last week's episode of the podcast was actually about occupational health, so if you'd like to give that one a listen, you can find it on our website at www.seemp.co.uk/theHRedit. 

0:18:02 - Michelle
So, once you have given the employee the information about your concerns and the expected standards, they've had the opportunity to put their case forward. As a manager, you then have the responsibility to determine almost what comes next. If the mitigation isn't sufficient to explain away all the performance issues, or if you are still needing to kind of set out the pathway from where they are to where you need them to be, your best bet is to go into that sort of formal improvement plan process where you do set out how that individual needs to improve, set out what training will be put in place, what support will be put in place, and set out some time scales in which you expect improvement in performance. Now, depending on how, how different the performance level is to the expected level, that may be a three month period, it may be a six month period. Those monitoring periods shouldn't start until any training has been delivered, though. So if one of the things that has been identified and I'm going to take for example, you know the, the role has shifted slightly, so there's more emphasis on using Excel spreadsheets and using some of the kind of intermediate level functionality within Excel, such as pivot tables, and you know some of those more complex formulas like the count ifs or some ifs. 

If the reason the person's performance has dropped off is because they don't have that skill set, it wouldn't be fair to start judging their improvement in performance until the training has been delivered, until they've had the opportunity to learn the skills. And, as I said before, that doesn't necessarily need to be a formal training course. I've learned quite a lot from YouTube videos, so it, as I say, it doesn't need to be that formal classroom training. It could be something as simple as that which you know you could achieve within a week or two, but it would not be right, it wouldn't be fair, it wouldn't be reasonable to start that monitoring until that training had been delivered, in whatever form it takes Now, obviously, that improvement plan with the monitoring time scales needs to be recorded formally and a copy put on that individual's personnel file. So what happens? 

0:20:35 - Helen
if the employee doesn't agree with the improvement program put in place. 

0:20:40 - Michelle
So it might sound a bit funny, but because it's you know the,the process has taken into consideration their case. You'd kind of assume that that was it. You know the improvement plan was a collaborative plan, but that's not actually the case. It is still deemed as an employer led plan. So the employee, because it's a formal decision with a formal sanction in so far as the the monitoring period in place, they do have the right of appeal against that decision and that should normally be escalated up to the next level of management. In smaller organisations that's not always possible and obviously, depending on the level at which we're having these conversations, it may not be possible to escalate up. So tribunals will take into consideration that the kind of the facts of the organisation. So if you are sidestepping to another manager at the same level to hear the appeal, then that is, that is permitted. But they should be from a different function area of the business rather than, you know, in the same division or same department, because that can cause its own conflicts between the two managers. 

0:21:53 - Sarah
It seems like it's just kind of it's similar to sort of disciplinary and stuff. It's a similar process, isn't it? It's not a million miles away, it's just a different issue. 

0:22:02 - Michelle
Very much so, and that's that's the, You know. That is the crux of it. It is an employer led process and there is a certain expectation when an employer is leading a process as to how it will be conducted and that is a raise the issue. Give the employee the opportunity to put their case forward, consider what the employee has said and then take a decision as to what action is actually required from that point forward and then give the employee the right of appeal against that decision that has been made. And you know, even the next step of you go through that monitoring period. You know, and I would always say that if you've got, even if you've got just a three month monitoring period, actually you should be meeting with that employee at least once a month to have a conversation just to track progress. You know how's it going. Has there been some improvement? Where are we on that journey to meeting the expectations? 

again, nobody likes being blindsided at the last, you know, at the eleventh hour so why would you set a three month monitoring period or a six month monitoring period and not have any conversations in between and just two days before that sick that period is over, call a meeting, go no, you're still rubbish. You know we've got to move to the next level. 

0:23:39 - Sarah
So you know it's very much about you know, being a decent human being really in terms of how you manage these processes and having those people management skills at the end of the day as well, because as a manager you do have a responsibility to the humans. You know that you line manage because without them there's no work. 

0:23:59 - Michelle
So you, there's no service to manage it's not called people management for nothing now I mentioned there about if the performance has not reached the expected standards at the end of the monitoring period. Now, you know, it might be that there has been some improvement, or they're nearly there, and actually the manager may kind of go that's enough, we don't need to go any further. They, you know they're making the right effort and we're on the right path, and that's fine. You can then, you know, have that meeting at the end of the monitoring period and confirm that, that you know that performance has increased to a satisfactory level. But if it hasn't improved to a satisfactory level, if there's been very little progress or the interventions that you've put in place have made no difference, then you are looking at moving it to a stage 2, capability Hearing, and that is very much the same kind of process Invitation with notice right to be accompanied. Again, no surprises. So you know it should be a reflection of this is what was set out, this is what is expected, this was the plan that was in place, this is what's happened, and you know we're still not at the level of performance that we require. Again, considering the mitigation that the employee puts forward, whatever their case is, you have to take that into consideration. And, again, if you know, if necessary, you put an improvement plan in place. It could be a repeat of the previous one, it could be enhanced one, it could be the next steps with those monitoring time scales. 

Again, at this stage I would be expecting that sort of six-month review period. But again, it will depend on circumstances. That would depend on the gap in performance, it will depend on the mitigation, it will depend on what needs to be put in place to support that employee to perform to the level that you are asking them to perform at. And then again, it's a formal process, it's a formal decision. So they would have the right of appeal against that second improvement plan and monitoring period if at the end of that Stage two monitoring period they still haven't reached a satisfactory level of performance. 

You would hold the review meeting. But that review meeting would be a formal meeting with the potential of dismissal, and that dismissal would be on performance capability grounds. So you know it very quickly potentially could get to that dismissal stage, depending on your length of monitoring periods at stage one and stage two, whilst that final review meeting has the potential to result in a dismissal Before you get to that, that meeting really needs to consider Alternative options. So is there a way of redesigning the work of the team which would enable a job to be created that will fit the skills and knowledge of that individual? Are there redeployment opportunities? You know where the skill set and the knowledge of that individual will be sufficient for them to be able to perform the duties of that job? And if those you know? If, after considering those options, there really is no alternative, then you would be moving to a dismissal on the grounds of performance capability. 

0:27:28 - Sarah
When it gets to that stage, is the employer obligated to do a thorough check of whether they can redeploy someone, whether they can change how you know the job and everything else. Is an obligation, or is that a an option? 

0:27:45 - Michelle
It's an option, it's not an obligation. You know the the the basis of Employment law is that an employee is engaged to carry out a job and If they are presenting as ready-willing and able to do that job, the employer is required to give them a fair wage for carrying out that work. In the case of capability, we're technically talking about someone not being able to do the job, whether that is health grounds or performance grounds. We are talking about an individual being unable to perform the job. So that's where we can move to dismissal. Now we tend in the public sector to be very supportive and Try very hard not to terminate people's employment If we can help it. So we do tend to look at redeployment and job redesign as options, but we are certainly not obliged to create a job to keep that person employed. And you know, providing we are exploring the opportunity of redeployment, you know that is sufficient in terms of following that fair and reasonable process With the options that are available to us as employers. 

0:29:09 - Sarah
Michelle, you'll know this well, but we do. We get a lot of queries from organisations regarding when an employee will take out a grievance or go off sick as a result of a manager actually trying to manage their performance and, in regard to this, a capability issue what, what, which? What is your advice about that? 

0:29:32 - Michelle
Yeah, it is very common, you know and in some respects it is a legitimate reaction to go off sick, that you know the stress kicks in. You know they're worried about their job, they're worried about what's going on that has caused their performance to drop. So you may well find that people are genuinely Sick and unable to face coming into work. The problem with that is that the longer this hangs over their head, the worse that's going to get. So, as in many, many situations, dealing with it and getting it out the way effectively will actually help rather than hinder that individual's health. So the first point in that you know where we're talking about sickness absence is it's going it's more likely than not going to be stress. That is put on the fit note. So get a referral to occupational health. You're not asking the normal questions although those would always be helpful around managing sickness absence. What you are specifically asking for here is is the individual fit to participate in the process of having the conversations around their performance capability? And if they are, they may not be fit to work, but they are fit to participate in the process and you can proceed. Now you may need to make some adjustments to the process. It may be that you meet at a neutral venue rather than come into the require them to come into the office for the meetings. It may be that you agree to do the meeting virtually rather than in person. It may be that you allow that individual to have someone other than a trade union rep or workplace colleague with them. That provides moral support in that formal meeting. So those are the sort of adjustments that you could make, but it is worth if you get the okay from occupational health in in terms of pushing forward and sort of creating that improvement plan. Of course you can't assess a person's performance if they're not at work, so the monitoring period can't start until they have returned to work. And we do see some of the more challenging employees I'm going to call them, you know stay off sick even once the hearing has taken place to delay that monitoring period. And if that's the case it moves you kind of. You effectively stay the capability improvement plan and, depending on the length of absence, you move over to managing the sickness absence in that appropriate process. 

Other side of that, of course, is where the employee is not fit to participate and there may well be circumstances where occupational health do say no, it's not. You know, it's not possible at this immediate moment in time for them to be able to participate. Now I would also be asking occupational health if they can't participate, would, in terms of attending the meeting, would it be possible for them to send a representative to appear on their behalf to put their case forward and to participate effectively in their stead? So again, occupational health may say yes, that's fine because the individual is able to communicate enough. You might, as the management might need to put some questions in writing so that the individual can respond to that or provide the information to their representative to present on their behalf. Again, it's about making adjustments to the process to enable the level of participation that occupational health have said is possible. There may be a case, there may be occasions where occupational health say there is absolutely no capacity for that person to participate in any way, shape or form in the capability process. I would be going back and saying you know effectively what's the prognosis, you know how can they. Can occupational health give any indication as to when they may be fit to participate and if that's not a particularly lengthy wait, it is definitely worth sort of staying the capability until they are in a position to be able to participate. If that absence and the inability to participate continues would be reasonable for the employer to keep it under review and at some stage make the decision around whether that individual's employment can continue. But again we would be moving that into a health capability or sickness absence management process rather than using the capability process for dismissal, because the reason behind the potential dismissal is absence, not the performance in those circumstances. 

Sarah, you also mentioned the counter grievance. Effectively, and we do again see this quite often where the employee is aggrieved with their manager because they have dared to question their competence in the role and, as a result, they raise a grievance against their manager and allege that their manager is bullying them or behaving in an unreasonable manner towards them. These can sometimes be quite challenging to deal with. We would always recommend that you have a conversation with the employee and the manager and see whether there is any potential substance to those allegations. 

What you don't want to do is allow the manager to continue with their performance capability case and then have the investigation into the grievance say that actually there is sufficient evidence to support the allegation of bullying, because that effectively throws out any work that that manager has done in terms of the performance management. So I would recommend that you do a very quick but thorough investigation into the grievance to see whether there is any indication or any grounds for the grievance to be found and if not, then the manager can proceed as planned. If there is some evidence of the allegations that have been raised, then you can escalate it or get an alternative manager to step in and manage that capability process. So you may escalate it to the line manager's manager. You may side step it to another manager within their management. You may side step it to another manager within the team. 

0:36:17 - Helen
Thank you as always, Michelle and Sarah. Again, I've learned a lot from this episode. If you are a member of SEE and have any questions or queries related to capability issues, you can always contact us at advice at seemp.co.uk or for any other topics of HR advice. Michelle has touched on a lot of topics relating to previous HR edit episodes, including last week's episode on occupational health, sickness, absence from season one and our very first episode talking about disciplinaries. So check these out on our podcast web page, www.seemp.co.uk/theHRedit, where you will also find any resources relating to our episodes. Be sure to subscribe to the podcast on Apple Podcasts, Spotify or wherever you get your podcasts, and visit the Southeast Employers website at www.seemp.co.uk for more information on how the team can support you with anything HR related. Thank you for listening and see you next week. 

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