Capabilities – Are You In A Position To Accurately Determine An Employee’s Capability?

What exactly is ‘Capability’?

If you are considering an employee’s ‘capability’, you are thinking about the job they are employed to do and the knowledge, experience and ability they have to complete that job to a satisfactory standard. If an employee is not performing in an expected or satisfactory way, they likely have a lack of capability. It is at this point that businesses could consider beginning a capability process.

At what stage should you begin a capability process?

There are very clear guidelines laid out in the ACAS code of practice regarding your responsibilities before beginning a formal capability process. An investigation should be carried out to explore underlying causes for performance concerns. This will serve to inform whether it is correct to continue with a capability process. For example, if an employee’s poor performance is related to a lack of training, it would be unreasonable for a capability process to begin without an attempt being made to address the lack of training.

It is vital that the employee is involved in this process and that they are given the evidence that has been gathered from the investigation so that they are able to give a response. These responses may well inform managers about issues that are at the heart of a drop in performance. Understanding these issues may allow resolutions to be found, avoiding the need to begin capability processes.

Why do businesses shy away from beginning capability processes?

The thought of beginning the capability process can be very daunting and in some cases, businesses may find themselves stalling. There may be many reasons for this.

It may lie in the fact that there is simply a lack of understanding and knowledge regarding the process itself. There may be concerns over the legislation and procedures which need to be adhered to. It could be that there is a lack of experience in dealing with employees suffering from disabilities or mental health issues.

At the very heart of it though may well be the recognition that it is very unlikely that employees are choosing to work in an unsatisfactory way. There is likely to be an underlying reason for this occurring, a reason which may well cause you to feel empathy for your employee and which may feel at odds with beginning a capability process. Ultimately though, it is important to understand that delaying the process is unlikely to be beneficial. An underperforming staff member needs support and guidance to allow them to reach the expected levels of performance to avoid problems from escalating.

How much is too much communication?

If an employee is on long term sick leave, it is important to have a clear and consistently applied policy in place in regards to the ways in which channels of communication will stay open between managers and employees. The general definition of ‘long term sick leave’ is an absence which is 28 days or longer.

There should be an understanding that both employee and line managers have a joint responsibility to communicate during a period of long term sick leave. Due to the nature of long term sick leave and the many different reasons that it may arise, there is no one approach that will suit every situation. As a general guide though, managers should seek to approach employees after 28 days of sickness and agree on a schedule of communication which is suitable for both the business of the employee. This should be regular, scheduled and should ideally be conducted monthly. This will allow for businesses to have a full picture of the complications that a staff member may be experiencing, which will allow for the implementation of alternative measures and reasonable adjustments to help them return to work.

What should be considered when making reasonable adjustments?

Before committing to reasonable adjustments, an employer should consider:

*Are they practical to make?

*Are there resources to fund the adjustments?

*What is the likeliness of the adjustments being effective?

*Will they have an adverse effect on the health and safety of others in the workplace?

Once these factors have been weighed up, the question of what is considered ‘reasonable’ must be factored in. This will be dependent on the size of the organization. A small business may find it harder to make adjustments than a very large company.

Examples of reasonable adjustments might include:

*A phased return to work

*A change to work hours or pattern

*Changes to the workspace

*Changes in performance targets

Are there any risks to your business from capability dismissal?

The biggest risk that you may face if dismissing an employee based on capability is that they may take you to an employment tribunal claiming that they have been dismissed unfairly. In 2017, the Supreme Court ruled it was unlawful for there to be fees attached to employment tribunal cases. Following this ruling, the number of claims made in employment tribunal cases rose by 90%. It has been estimated that small businesses may face fees of up to £8,500 defending themselves in cases of unfair dismissals from previous employees.

What should you do before beginning a capability process?

It is vital that all businesses have absolutely no ambiguity in contracts and policies, particularly over aspects such as grievance procedures. Businesses should regularly review employment policies and have an awareness of legislation and the correct procedures which should be followed. This will minimize the risk of employees successfully challenging their dismissal.

Introducing a centralized online HR system is an excellent way of ensuring that procedures and timeframes are being followed consistently within the business, also ensuring that the processes are understood and transparent for employees.

Navigating through the capability procedure can feel like a daunting task, so why not let us help you? We can support you in introducing effective monitoring and performance review systems as well as carry out training to help with both informal and formal management of staff.

We can coach and train you to address poor performance in your workforce and support with formal procedures such as disciplinary or capability procedures if necessary. Get in touch for a free and confidential consultation to discuss how we can support you further.

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