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Managing under-performance - a capability policy

This Policy is only applicable to UCL staff seconded to Nazarbayev University, Astana, Kazakhstan

1. Purpose

1.1 This policy is designed to ensure that cases of under-performance are dealt with similarly and fairly, with the prime objective of improving an employee's performance to the required level.

1.2 It also sets out the process to be followed where an employee’s performance does not meet the required standards.

2. Scope

2.1 This procedure applies to all UCL employees seconded to Nazarbayev University, except those who are within their probationary period, who are covered by the Induction and Probation Procedure and establishes guidelines for managers and employees in relation to the management of under-performance.

2.2 Lateness is normally managed through the Kazakhstan Disciplinary Procedure.

3. Definitions

3.1 The Stages in this policy comply with the Labour Code 2007 as amended.

4. Principles

4.1 Performance Standards: UCL has a responsibility for setting realistic and measurable standards of performance, for explaining these standards carefully to employees and for supporting employees to achieve the standards set.

4.2 Fairness: The application of this procedure will be consistent, prompt, impartial, and reasonable and applied without discrimination.

4.3 Confidentiality: Information relating to the application of this policy should not be divulged to any parties not involved in the capability process. Statements, letters and other communications will be strictly confidential to those involved in the Capability Policy and records will be kept in accordance with the Labour Code of the Republic of Kazakhstan (2007) and the UK Data Protection Act 1998.

4.4 Natural justice: At every formal stage of the Capability Policy, the employee will be advised of the nature of the complaint, in writing and will be given the opportunity to state his/her case. Where a warning is given, the employee will be provided with appropriate support to improve his/her performance.

4.5 Equal opportunities: This policy will be applied without any distinction as to sex or gender assignment, age, sexual orientation, marriage and civil partnership status, race, ethnic or national origin, colour, creed, disability, religion or belief, political belief, membership of or activities as part of a trade union, or social or economic status.

4.6 Statutory Time Limit: A disciplinary sanction in relation to capability may not be imposed on an employee later than one month after UCL management becomes aware of the underperformance, or decides that the employee is underperforming, except where the employee is on authorised absence through illness, leave, business or performing public duties. It is important that the capability procedure be completed within this time limit.

4.7 Representation: The employee has the right to be accompanied by a companion who is a work colleague, trade union representative1 or an official employed by a trade union, at every stage of the formal procedure.

The companion shall have an opportunity to address the hearing, put and sum up the employee's case, respond on behalf of the employee to any views expressed at the meeting, and confer with the employee during the meeting. The companion does not have the right to answer questions on the employee's behalf, address the meeting if the employee does not wish it, or prevent the employer from explaining his/her case.

Any request to be accompanied at a meeting must be reasonable i.e. the companion should not be someone who may have a conflict of interest or who may prejudice the hearing. The employee should notify the manager/supervisor of his/her chosen companion prior to a meeting.

Where the chosen companion is not available at the time proposed for the meeting, the employee may request that the meeting be postponed and to suggest an alternative time within the constraint that the outcome is implemented within a month of UCL becoming aware of the underperformance. All such reasonable requests will be honoured.

4.8 Right of appeal: An employee has a right of appeal against any formal disciplinary sanction and appeals will be heard by a senior manager not previously involved in the case, in accordance with the Appeals Procedure.

4.9 Recordings: Audio/visual recordings of the proceedings by the employee, his/her companion or managers are not acceptable at any stage of the capability procedure and will not be admissible within this process, unless agreed as a reasonable adaptation.

5. Policy

5.1 All new employees will have their job explained carefully to them on arrival at work, will be given a copy of, or referred to, any written guidance that exists in relation to their area of work and will be given appropriate training and support to become familiar with it. Employees must also be made aware of the standards expected of them and where expectations change and evolve over time; managers have a responsibility to inform employees of these changes. See also the Kazakhstan procedure on Induction and Probation.

5.2 All employees have a contractual responsibility to perform their duties to an acceptable standard and they should be given all reasonable support and encouragement to do so.

5.3 For the purpose of this policy an employee's capability to do their job is assessed by reference to their skills, qualifications, aptitude, health or any other physical or mental quality.

5.4 Any perceived underperformance must be dealt with as soon as possible after the event and action taken in terms of each of the stages must be taken within one month of the supervisor deciding that the employee is underperforming.

5.5 Formal reprimands and sanctions may not be issued when the employee is not present at work by reason of illness, leave, absence on business or carrying out public duties.

5.6 All outcomes will be confirmed in writing to the employee within 3 working days and the employee be requested to sign confirming receipt. If such confirmation is refused the outcome letter must be reissued with the refusal recorded.

6. Procedure

Informal Stage

Stage 1     (Article 72.1(1), Labour Code of Kazakhstan)

6.1 When there is evidence that an employee is not performing at an acceptable level, the manager should investigate the circumstances without delay and endeavour to ascertain the reasons for the unsatisfactory performance. If, following this examination, the manager considers that the employee's performance is deficient in some material respect; an informal discussion with the employee will be arranged within two weeks. At this meeting the manager will:

6.1.1 make clear the areas in which the employee's performance is below expectations (explaining the grounds / evidence for this view) with the aim of identifying any problems or reasons for the under-performance, which could be resolved. Solutions to the problem could include additional training, providing a mentor, coaching or some other kind of ongoing support to the employee

6.1.2 give the employee the opportunity to explain their under-performance and to raise any concerns they may have about the job, or the support and guidance they have been given to do it

6.1.3 bear in mind the obligation to make reasonable adjustments when dealing with disabled employees (see Labour Code of Kazakhstan, Chapter 24)

6.1.4 ensure that the employee is aware of the level of performance / productivity required in relation to each element of the duties about which there is a concern

6.1.5 set a reasonable time frame within 6 months in which improvement is expected and arrange a further meeting before the end of this time to review the situation. When establishing "reasonable timescales" for improvement, managers must consider the complexity of the tasks involved in relation to the qualifications and experience of the employee.

6.2 The content and outcome of this meeting will be confirmed by the manager/supervisor in writing to the employee, including the type of improvement required, any additional support or training that will be provided, any other agreed actions and the timescale for improvement and review.

When discussing under-performance managers must be specific about their concerns and must demonstrate evidence and/or give examples to support their assertions.

Formal Stages

The following procedural timelines will apply to Stages 2, 3 and 4 of this policy.

Process

Timeframe (working days)

The manager/supervisor provides the employee(s) with details of the performance deficiency and requests a written explanation of the causes of underperformance within 3 working days.

Immediately it is decided that the performance is deficient.

Employee explanation received by

Day 4

The manager/supervisor notifies the employee in writing that s/he is required to attend a formal interview to discuss the underperformance. Employee provided with the names of any witnesses who will be called by management.

Day 5

Employee contacts the manager/supervisor to request witnesses to be called at the meeting.

Day 6

The manager/supervisor invites required witnesses to meeting and asks for written statements by

Day 10

The manager/supervisor provides the employee with copies of all written submissions received

Day 11

Meeting

Day 13

The manager/supervisor notifies the employee of outcome of the meeting in writing and informs the employee of the right to appeal.

Day 14

Employee acceptance of outcome signature.

Day 17

 Stage 2      (Article 72.1(2), Labour Code of Kazakhstan)

a) If there is continued unsatisfactory performance or where a first instance of unsatisfactory performance is sufficiently serious to warrant formal action (e.g. where health & safety is at risk or significant costs or other liabilities are involved) the employee should be provided with the details and must be asked to submit a written explanation of the causes of underperformance.

b) The employee will be invited to a formal interview to discuss the matter. The invitation should specify the concern(s) and evidence of the underperformance. The employee’s written explanation will be considered at the meeting.  An employee will receive 3 working days advanced notice in writing of any formal interview arranged under this policy (unless the employee agrees to less in writing). Where witnesses are to be called by the manager/supervisor or the employee, prior notice of this should be given.

c) At this meeting the employee will have the opportunity to explain their unsatisfactory performance. The employee will be reminded of the earlier informal discussions (where these have happened) and the steps taken to support an improvement in their performance. They will be told as precisely as possible, the reasons for the manager's continued concerns about their performance. If, having heard any explanations offered by the employee, the manager/supervisor remains concerned; a reprimand in the form of a Reprimand will be given for unsatisfactory performance. This will be confirmed in writing to the employee.

d) This disciplinary sanction will be placed on the employee's HR file and will be disregarded after a period of 6 months.

e) At this interview further consideration should be given to any additional training or support that could reasonably be provided to the employee to enable them to reach the required standard of performance. A reasonable time period (within 6 months) will be set within which improvement is expected and a further meeting arranged before the end of this time to review the situation.

Stage 3      (Article 72.1(3), Labour Code of Kazakhstan)

a) If there has been insufficient improvement in performance within the timescale following the Reprimand a further formal interview will be held with the employee.

b) The employee must be asked to submit a written explanation of the causes of underperformance to be considered at the meeting.

c) At this interview the manager will review the history of the case, including the steps that have been taken to support the employee to achieve the required level of performance. If, having heard the explanation offered by the employee, the manager/supervisor remains concerned a severe reprimand in the form of a Severe Reprimand will be issued for unsatisfactory performance. This will be confirmed in writing. The employee will be informed that their job will be at risk if satisfactory performance levels cannot be achieved and subsequently maintained.

d) This disciplinary sanction will be placed on the employee's HR file and will be disregarded after a period of 6 months.

e) Further consideration should be given to any additional training or support that could reasonably be provided to the employee to enable them to reach the required standard of performance. A review period will be set within which improvement is expected (within six months) and a further meeting arranged before the end of this time to review the situation.

Stage 4      (Article 72.1(4), Labour Code of Kazakhstan)

a) If there has been insufficient improvement in performance within the timescale following the severe reprimand, a further formal interview with the employee will be held.

b) The employee must be asked to submit a written explanation of the causes of underperformance to be considered at the meeting.

c) At this interview the manager will review the history of the case, including the steps that have been taken to support the employee to achieve the required level of performance. The employee's explanation will be heard and considered. A decision will then be taken to either dismiss the employee on the grounds of capability (repeated failure to perform or inadequate performance of his/her duties under a current severe reprimand) or having inadequate qualifications for the role (as decided by the Attestation Commission) or to accept the explanation offered and allow the contract of employment to continue. The manager will confirm this decision and the reasons for it in writing to the employee. HR Consultancy must be consulted prior to any meeting that may lead to dismissal.

7. Ill-health / Poor Attendance

7.1 An employee's capability to carry out their role to the expected standard may be affected by their health and their attendance record. (This is less likely to be the case where employees work a flexible or irregular work pattern). Managers must bear in mind the obligation to make reasonable adjustments when dealing with disabled employees.

7.2 The procedure for managing long-term periods of sickness absence (four weeks or more) is set out in full in the Kazakhstan Sickness Absence Policy.

7.3 The early stages for managing repeated short-term absence is also set out in the Sickness Absence Policy. Where the second Sickness Absence Review meeting does not however produce the required improvement in attendance, the situation will then be managed through this policy. A Stage 3 formal meeting will be held at which any explanations offered by the employee will be discussed. A Severe Reprimand may be given for unsatisfactory attendance, if the manager/supervisor remains concerned and this will be confirmed in writing. The employee will be informed that their job will be at risk if satisfactory attendance levels are not achieved and maintained.

8 Right of Appeal

8.1 An employee has the right to appeal against any formal action taken against them in line with this policy and must do so by writing to the HR Director of Consultancy & OSD, within 7 working days of the date of receipt of written confirmation of the action taken against them, stating their grounds for appeal.

8.2 The appeal will be heard by a senior manager not previously involved in the case. The appeal hearing will take into account any new evidence that either party may present and consider its relevance to the sanction imposed.

8.3 Where an appeal is upheld, reference to the disciplinary sanction will be disregarded. Alternatively, the outcome of the appeal hearing may be to impose a lesser penalty e.g. a severe reprimand instead of dismissal, or to shorten the period for which the disciplinary sanction was originally issued. The outcome of the appeal will be set out in a letter to the employee from the Hearing Manager.

8.4 If an employee is successful in appealing against summary dismissal, they will be paid in line with their contract of employment in respect of the period from dismissal to reinstatement, as if the dismissal had never taken place.

9. Monitoring and Review

UCL monitors the use of its Kazakhstan Capability Policy by the sex, age, ethnic origin and disability status of those against whom action is taken to ensure that its implementation does not impact unfairly on any one group.

HR Policy and Planning
June 2011
Updated July 2012


1 A trade union representative, who is not an employed official, must have been certified by the union as being competent to accompany or support a worker. Support may include teleconferencing, videoconferencing, Skype calls etc

2 If the employee refuses to sign the outcome notification it must be reissued noting that the employee’s refusal.