1. General Principles

1.1. The University is committed to developing and maintaining constructive relations with its employees. This non-contractual procedure provides a framework for dealing with situations where an employee’s sickness absence or a medical condition renders him/her incapable of satisfactorily carrying out his/her duties.

1.2. The University will act fairly and consistently when dealing with cases under the Capability Procedure.

1.3. An employee has the right to be accompanied at any formal meeting and related appeal by a work colleague, a duly accredited Trade Union representative or an official employed by a Trade Union, and may also be accompanied on request at investigatory meetings.

1.4. If an employee has particular requirements at any stage of the procedures because of a disability, or wishes to inform the University of any relevant medical condition, the employee should contact the appropriate Human Resources representative.

1.5. Different procedures apply to conduct, performance and sickness/ill health cases. The University may commence the process using one procedure but continue the process using a different procedure if it is more appropriate and reasonable to do so.

1.6. The University will follow each of the stages set out in this Capability Procedure in any particular case but in appropriate cases reserves the right to commence the procedure at any of the specified stages or to omit a particular stage/stages.

1.7. Formal meetings will be minuted and copies of minutes will be given to the employee. The employee should inform the University as soon as possible after receiving the minutes if he/she wishes to comment on the minutes.  The University will keep a written record of every capability case which will be treated as confidential and will be kept in accordance with the Data Protection Act 1998. Notes of informal meetings may also be taken where appropriate.

1.8. Training and coaching for managers operating the procedures will be available.  Advice and guidance on the application of the Capability Procedure will be provided by the Human Resources Function and this should be sought prior to taking formal action through this procedure.  A Human Resources representative may be present at capability meetings. 

2. Capability Procedure

2.1 It should be noted that the arrangements for the day to day management of sickness absence are set out in the University Sickness Absence Policy and where there is an alcohol or drug related issue, the Alcohol, Drug and Substance Misuse Policy  will be used.

2.2 At each stage of this procedure, consideration will be given to whether the unsatisfactory attendance is related to a disability under the Equality Act 2010 and if so, whether there are reasonable adjustments that could be made to the requirements of the job or other aspects of the employee's working arrangements.

2.3 The University may seek medical advice from an Occupational Health practitioner who will request the employee to attend a medical review.  The Occupational Health service may also refer the employee to a medical specialist for advice and support.  Medical information may also be sought from the employee’s GP and/or consultant.  Employees are expected to co-operate with any requests for medical information. If a member of staff withholds his/her consent to a confidential report being provided decisions may be taken related to the member of staff's sickness absence based on the information available. 

2.4 The University will comply with all statutory requirements regarding the request and disclosure of medical information. 

3. Short-Term Intermittent Absence

3.1 Investigation

If an employee’s attendance record is unsatisfactory due to frequent short-term absences, the employee’s line manager will investigate this.  As part of the investigation the line manager will meet with the employee informally to try to determine if there is any underlying reason for the absences and to establish what action would be appropriate to support an improvement in attendance.  Where appropriate occupational health input may be sought.

After investigation, the line manager will decide:

• that no further action is necessary; or
• that informal action is appropriate in the first instance; or
• to invoke the formal capability process; or
• to invoke the disciplinary procedure where there is evidence that the sickness absence is not genuine or the sickness absence policy has not been followed.

3.2 Formal capability process

If absence issues are not resolved informally or matters are considered sufficiently serious to potentially merit formal action, the steps outlined below will be taken.

(a) Inform the employee in writing

The University will write to the employee inviting them to a capability meeting. The letter will lay out the University’s concerns and the reasons for considering that action may be appropriate under the formal capability process. 

The letter will contain sufficient information about the concerns identified in relation to the employee’s absence levels and the possible consequences of the meeting to enable the employee to respond to these at the meeting.  It will also advise the employee of their right to be accompanied by a work colleague or Trade Union representative.

(b) The Meeting

The purpose of the meeting is to allow the University to explain its concerns about the employee’s absence levels, to review the evidence and to enable the employee to respond to the concerns identified by the University.  It will also allow discussion, where appropriate, to identify how an improvement in attendance to an acceptable level might be achieved.

Capability meetings will normally be held by the employee’s immediate manager.  If dismissal is a possible outcome the person conducting the meeting will be different from the person(s) who carried out the investigation. 

Medical evidence, where available, will be discussed at the meeting.

After the meeting, the University will notify the employee of its decision in writing, normally within 10 working days of the meeting.  If the University decides that [formal] action is appropriate, the employee will be advised of the right to appeal.

3.3 Capability - Outcomes

In cases of short term intermittent absences, if the University considers formal action appropriate, the University will normally follow the order of sanctions laid out below.

Written Warnings will set out the following:

(a) the improvement in attendance required;
(b) the period over which the improvement is expected to take place (the assessment period will be appropriate to the circumstances);
(c) the period for which the warning will remain live, normally 12 months; and
(d) the likely consequences of a failure to achieve the required level of improvement

3.3.1 First written warning

If formal action is considered appropriate at an initial capability meeting the employee will normally receive a first written warning.

Attendance will be monitored and appropriate support will be provided by the University to enable the individual to improve without the need for further action under the Capability Procedure.  A further review will be conducted at the end of the assessment period.

3.3.2. Final written warning

If the employee’s attendance does not show sufficient improvement within the assessment period, or the concerns are sufficiently serious, the line manager will hold a (further) capability meeting in line with section 3.2.  At this meeting, following consideration of the case, it will be possible to issue a final written warning.  This will warn the employee that a failure to achieve the required level of improvement could result in dismissal.

Attendance will be monitored and support will continue to be provided by the University.  The aim of this support is to enable the individual to improve without the need for further action under the Capability Procedure.  A further review will be conducted at the end of the assessment period.

3.3.3 Dismissal

If a review of the employee’s attendance does not show sufficient improvement within the review period set out in the final written warning, dismissal will be considered by the University.

In such circumstances the procedural steps in section 3.2 will be followed by the University.

4. Long-term Absences

4.1 Continuing communication, investigation and consultation

The University will maintain contact with the member of staff concerned at regular intervals and the employee must co-operate with the University in this respect in line with the Sickness Absence Policy.  The employee should contact the University when any medical certificates (fit notes) are received and provide the original certificate in a timely fashion. Where appropriate, the line manager may request a consultation meeting with the employee.  This may be at the normal place of work or at another agreed location.  The purpose of the meeting will be to offer support, ascertain progress and to assess the employee’s expectations of returning to work.  Further consultation meetings will be arranged as appropriate. 

Where an employee develops a condition that affects their ability to perform their role over a long term period, but does not necessarily affect their attendance at work, a similar process will be followed as for an employee on long term absence.  This is aimed at supporting them, where possible, to return to full performance in their role.

4.2 Occupational Health Advice

The University will seek the advice of the Occupational Health practitioner who may also request a medical report from the employee's GP or Consultant.  The University may request the employee to attend an Occupational Health Review and the employee must take all reasonable steps to attend such a review.  The Occupational Health Service may also refer the employee to a medical specialist for advice and support.   The employee is required to co-operate with the University in obtaining medical information. The Occupational Health report will be considered by the University (in conjunction with all other known facts including the employee’s anticipated recovery period and the operational needs of the University) in determining how to manage the employee's absence.  Employees are expected to co-operate with any requests for medical information. If a member of staff withholds his/her consent to a confidential report being provided decisions may be taken related to the member of staff's sickness absence based on the information available.

If the medical advice recommends any steps which would facilitate a return to work (for example a phased return program) the University will work with the employee to try to implement these wherever practicable.

4.3 Support measures and/or alternative employment

The University will consult with the affected employee.  This consultation will consider, where appropriate and if practicable, any measures which may be taken to assist the employee to return to work e.g. temporary alteration to duties, temporary alteration to hours of work, changes to the work environment, other alterations or ultimately redeployment of the employee to a different post, in consultation with the appropriate HR Manager / Officer. As part of the consultation the line manager and employee will seek to agree a timeline for return to work.  Further guidance on return to work can be viewed at: Rehabilitation and return to work . 

Where an employee is unable to perform their duties due to a disability, reasonable adjustments will be considered in line with the Disability Policy.

4.4 Capability Dismissal

Where, following a thorough investigation and consultation with the employee (to include consideration of all medical evidence, the impact of any agreed support measures or reasonable adjustments that have been implemented, alternative employment and (where appropriate) early or medical retirement) the University considers that the employee is unable to return to work within a reasonable period, it may consider termination of employment.  In this situation, the University will advise the employee in writing that it is considering the termination of his/her employment on the grounds of capability and invite the employee to a meeting to discuss the situation. 
Where appropriate, an employee may apply for ill health early retirement subject to the appropriate pension scheme rules.

The University will fully consider any factors or suggestions raised by the employee before making a decision whether or not to terminate the employee's employment.

If the University is considering terminating employment the procedural steps in section 3.2 will be followed by the University.

5. Appeals

If the employee wishes to appeal the outcome of a decision made through the Capability Procedure, their appeal should be submitted in writing stating the full grounds of the appeal to the appropriate College / University Services HR Manager.  The employee has 5 working days to notify intention to appeal from the date of receipt of the University’s decision and a maximum of a further 5 working days to submit the full grounds of the appeal. 

The University will invite the employee to attend an appeal meeting normally within 15 working days of receipt of this notification.  Dismissal appeals will be heard by a panel of two: All other appeal meetings will be held by another member of staff normally in the employee’s line management structure who has not previously been involved in the case.  The letter will advise the employee of their right to be accompanied by a work colleague or Trade Union representative.

The employee will be informed of the outcome in writing within 15 working days of the appeal meeting

There is no further right of appeal.  This exhausts the University’s internal procedure.

Version 1 - Approved by HR Committee 27/9/2011