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UCL Capability Policy – Managing Poor Performance

UCL’s Policy on how to manage staff underperformance.

Contents

1. Purpose
2. Scope
3. Definitions
4. Principles
5. Management of Performance
6. Appeals
7. Monitoring and Review
8. Appendices
Appendix A: Procedure for Managing Poor Performance
Appendix B: Policy Flowchart
Appendix C: Appeals Procedure
Appendix D - UCL Performance Improvement Plan


1. Purpose

1.1 UCL expects that all employees, in line with UCL’s Ways of Working for professional services, otherwise UCL’s Core Behaviours, will strive to attain the highest levels of performance, engaging with the university to deliver the best learning, research, teaching, and professional services possible. This policy determines the procedures to be followed when standards of performance give rise to concerns that cannot be resolved by advice and encouragement, training, or increased support.

2. Scope

2.1 This policy applies to all UCL employees based within the United Kingdom except those who are within their probationary period of employment at UCL, in which case UCL's Induction and Probation Policy and Procedure should be followed.

2.2 Employees based at overseas campuses should refer to their local country-specific policy.

2.3 Academic staff are also covered by the provisions laid out in UCL’s Statute 18 of the Charter and Statutes at the formal stage of the Procedure under this Policy.

2.4 Where an employee's poor performance is believed to be the result of deliberate negligence or misconduct, or where serious errors have been made by them to the detriment of the university, managers should use the UCL Disciplinary Policy and Procedure.

2.5 In circumstances where there are concerns about the performance and capability of an employee arising from absence due to ill health, these should be managed using the UCL Sickness Absence Policy and Procedure.

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

3. Definitions

3.1 “Head of Department” (HoD) or “Director of Employee Relations” also includes anyone deputed to act on their behalf. References to Departments also include any equivalent structures, such as Professional Services, Institutes, etc.

3.2 “Impairment/Condition” refers to a newly diagnosed, pre-existing, emerging or changed physical, cognitive or mental health condition.

4. Principles

4.1 Fairness: This Policy should be applied consistently, promptly, impartially, reasonably, proportionately and without discrimination. Regular monitoring will be undertaken to ensure action initiated and any sanctions issued do not impact unfairly on any one group or in any one area.

4.2 Confidentiality: Information relating to an employee’s capability should only be divulged to any parties directly involved in the capability process and must remain strictly confidential to those people.

4.3 Natural Justice: At every formal stage of the capability procedure, the employee will be advised of the nature of the manager’s concerns in writing and will be given the opportunity to state their case before a decision is made. Where a warning is issued, the employee will be provided with appropriate support to improve their performance.

4.4 Informal Action: Informal action should be used wherever possible and appropriate to improve performance before formal action is considered. Where a first instance of unsatisfactory performance is sufficiently serious to warrant bypassing altogether the informal stage of the Procedure under this Policy, it may be initiated at Stage 2 – First Formal Hearing.

4.5 Disability: Where the manager is aware that an employee has an impairment/condition, they should consider the UCL guidance concerning Supporting Disabled People in the Workplace and the relevant provisions of the Equality Act 2010, including the duty where necessary to make ‘reasonable adjustments’ (1) for Disabled People in the workplace.

4.6 Representation: An employee has the right to be accompanied by a work colleague or trade union representative throughout the formal procedure. It is important to avoid real or perceived conflicts of interest so as to ensure fairness. The employee must notify the Hearing Manager of the name of their representative before any meetings are held under the formal Procedure.

4.7 Capability and Grievance: Any concerns that an employee has regarding action being taken under this Policy and Procedure should be raised as part of their response to the action and will normally be considered within the Procedure under this Policy. A manager may, at their discretion, halt capability proceedings and deal with the grievance first. Any grievance raised by an employee which does not relate to this policy will be subject to UCL's Staff Grievance Policy and will normally be heard only after completion of the Procedure under this Policy.

4.8 Right of Appeal: An employee has a right of appeal against any formal sanctions in accordance with the Appeals Procedure. Sanctions, including a warning or dismissal, will remain in place pending the outcome of any appeal.

4.9 Recordings: While notes will be taken of the proceedings, it is not acceptable for audio or visual recordings to be made, unless this has been agreed in advance as a ‘reasonable adjustment’.

4.10 Academic freedom: Management of poor performance through use of this Policy is not intended to infringe academic freedom.

5. Management of Performance

5. Process In order to avoid the suggestion that there has been unfair treatment or discrimination, managers are encouraged to seek advice and assistance from HR at all stages in order to keep consistency across UCL in the operation of the procedures that form part of this Policy.

5.1 It is a line manager’s responsibility to support and monitor the performance of employees they manage and to raise any concerns they may have with an employee as soon as possible, typically through regular supervision. The manager is also responsible for monitoring the workload of employees and for ensuring that duties and responsibilities fall within the range of reasonable expectations.

5.2 There may be circumstances where a manager reasonably believes that an employee was set a reasonable target and yet failed to meet it when given every opportunity to do so. This policy is intended to provide a constructive, standardised, and formal framework to support managers in intervening to address such problems of performance. Unless the matter of concern is significant, it is anticipated that the majority of issues will be dealt with informally.

5.3 At the end of an employee’s probationary period, clear objectives and standards of performance should be set out and agreed with the employee, in line with UCL’s Appraisal Schemes. The Capability Policy should be used to address all matters of unsatisfactory performance.

5.4 Managers should ascertain whether any alleged failure to meet required standards is due to misconduct, capability, or some other reason, when determining the appropriate approach to take. Where necessary, guidance should be sought from the HR Business Partnering Team.

Informal Action

5.5 Informal action is not part of the formal Capability Procedure and as a result, employees are not entitled to representation at these meetings.

5.6 Where a manager has concerns about performance standards or objectives not being met, and one-to-one meetings have not resolved these concerns, a confidential meeting should be held between the manager and employee for the manager to clarify the level of performance that is expected and, if necessary, put in place appropriate support. The invitation to the employee will direct them to this Policy for guidance and for clarification of the implications of not meeting agreed objectives and standard of performance.

5.7 At the meeting the manager will confirm the level of performance that is expected. The manager should provide constructive feedback and the employee should be given every opportunity to express their views on the issues raised, including identifying any barriers to improving their performance, such as time and workload management, or meeting an identified training need.

5.8 The outcome of this discussion, agreed actions to provide appropriate support, and any expected performance standards and objectives will be documented, including how and when performance will be reviewed again. Please see Appendix A, Stage 1 for guidance on the Informal Procedure to follow and Appendix D for a template ‘Performance Improvement Plan’. These documents will be kept confidentially by the manager and shared with the employee concerned.

Formal Action

5.9 Following informal action, where it becomes apparent that an employee is not performing at an acceptable level even where agreed support has been put in place; and/or the perceived level of performance is such that Health and Safety is put at significant risk; and/or substantial costs or other liabilities are being incurred; the manager should initiate the formal procedure shown at Stage 2 of Appendix A. This procedure is also outlined in a flow-chart at Appendix B.

5.10 For employees covered by Statute 18, formal capability action that may result in an oral or written warning being issued shall be managed in line with the provisions of this Policy and Procedure. A hearing will normally be chaired by the Head of Department (except where natural justice dictates otherwise) and an appeal heard by a Dean or Vice-Provost. Serious capability matters that may result in dismissal shall be dealt with under the provisions of Statute 18, Part III, paragraphs 14 – 20.

6. Appeals

6.1 An employee has the right to appeal against any formal action taken against them under this Policy. The Appeals procedure is outlined at Appendix C.

7. Monitoring and Review

7.1 UCL monitors the use of the Capability Procedure by sex, age, ethnic origin, and disability status. The resulting data will be analysed by the Human Resources Division, reported to the relevant Committees and discussed with the recognised trade unions.

7.2 UCL HR will keep the operation of this policy under review.


8. Appendices 

Appendix A: Procedure for Managing Poor Performance

In most cases where poor performance is evidenced, managers should commence at Stage 1, using the informal procedures. The aim is to improve performance promptly and locally by addressing any factors impeding the meeting of objectives and to avoid escalation to a formal procedure.

Where a first instance of unsatisfactory performance is considered sufficiently serious to warrant bypassing the informal stage of this procedure altogether, the employee should be invited to a Stage 2 Formal Hearing to discuss the issues of concern.

1. Informal Action

Stage 1 – Informal Meeting

1.1 Where there is evidence that an employee is not performing at an acceptable level, meaning that agreed work objectives are not being met, which might include where Health and Safety is put at risk or where costs or other liabilities are being incurred, the manager should investigate the reasons promptly for this at a meeting with the employee.

1.2 First Review Meeting

During the course of this meeting the manager should:

  • Make clear to the employee where their performance is not reaching expectations, giving specific examples to provide evidence of the grounds of underperformance;
  • Explain clearly the shortfall between the employee’s performance and the required standards of the role and review support and training provided;
  • Give the employee the opportunity to explain their performance and to raise any concerns they have about their job; the support and guidance they have been given to do their job, and put forward explanations for their performance;
  • Ask the employee's opinion on what they can do to achieve improvement in performance;
  • Consider any relevant mitigating factors which are put forward including any health condition or disability and/or any reasonable adjustments required.

1.3 Where it is apparent that there are mitigating factors impacting on performance such as insufficient training, guidance and support, health concerns, or other significant matters, these should be explored and appropriate support offered. A further review should then be set to assess whether the guidance and support offered has improved the performance to satisfactory standards.

1.4 Where there are no apparent mitigating factors, or support and guidance has not led to the necessary improvements, the following action should be taken:

  • Set clear ‘SMART’ improvement objectives with the employee
  • Agree a timescale for this improvement to be achieved, which should normally be not less than four weeks and not more than three months
  • Complete a Performance Improvement Plan and send a copy to the employee
  • This form will be shared only between the employee and the manager at this stage
  • Set date for next review meeting
  • Clarify that if there is no improvement, the formal stage will be entered into.

Potential remedies for poor performance might also include:

  • Additional training
  • Coaching
  • Reviewing workload
  • Providing a mentor or ongoing support
  • Agreeing a trial change to the current contractual working hours to allow for greater flexibility, with a corresponding reduction in salary where working hours are reduced
  • Making reasonable adjustments (if appropriate)

1.5 The manager should ensure that the member of staff is aware of the level of performance and productivity required in relation to each element of the duties of their job about which there is a concern.

1.6 Second Review Meeting

A further meeting should be arranged at the end of this period to review the employee’s performance against any agreed SMART objectives. When establishing an agreed time frame within which improvement should occur, managers must consider the complexity of the tasks involved in relation to the relevant skills, knowledge and experience of the employee concerned. The manager should also consider whether any reasonable adjustments have been implemented where required and whether these have been successful or need to be reviewed. The manager should make clear to the employee that if their standard of work performance does not improve to the anticipated level, this could result in formal action under the Capability Procedure.

After the second review meeting, the manager should confirm in writing:

  • That sufficient improvement has been made, and the need to sustain this standard; or
  • Sufficient improvement has not been made and that formal procedures will be invoked.

2. Formal Procedure

Stage 2 – First Formal Hearing

2.1 If performance continues to be unsatisfactory, or in cases of more serious incidents of poor performance, such as where health and safety has been put at risk, a formal hearing will be convened by the employee’s manager. Any grievance raised which is linked to alleged poor performance will not typically halt the application of this procedure: rather, the issues will be combined and addressed together.The manager conducting the hearing will normally be the employee’s manager. The relevant HR Business Partner must be contacted by the manager to provide advice and support in conducting the hearing and to appoint an HR Advisor.

2.2 At all formal stages of this procedure, the employee must be given at least 10 working days’ notice in writing of any hearing. However, a hearing can be held with less notice if the employee agrees to this.

2.3 At all formal stages of this procedure, the manager should write to the employee to notify them of the hearing. The manager should also provide the employee with evidence of the underperformance concerns. In the notification of the hearing, the employee will be advised of:

  • The time, date and location of the hearing
  • The purpose and possible outcomes of the hearing
  • Their right to be accompanied by a work colleague or trade union representative
  • The right to call appropriate witnesses who can provide evidence relevant to their case.

2.4 The employee should inform the HR Advisor in writing of the names of any witnesses (s)he would wish to call at least 8 working days in advance of the hearing. The employee should ensure that any documentary evidence which they wish to rely upon at the hearing is provided to the HR Advisor at least 7 working days prior to the meeting.

2.5 If the employee's workplace colleague or trade union representative is unable to attend a hearing held at the appointed time for any formal stage of this procedure, they may request a postponement and suggest an alternative time and date. Where the suggested alternative is reasonable and within 5 working days of the original date, the hearing will be rescheduled by the manager.

2.6 At all formal stages of this procedure, the person accompanying the employee 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 hearing, and ask to confer privately with the employee during the hearing. They do not have the right to answer questions on the employee's behalf, address the hearing if the employee does not wish it, or prevent any party from explaining their case.

2.7 Under exceptional circumstances, application of the Procedure for Managing Poor Performance may be paused (at the discretion of the Head of Department) where the nature of a grievance raised seriously draws into question the motivation of the employee’s manager. For example, if the employee alleges that the Procedure for Managing Poor Performance has been engaged because they have a protected characteristic, the Head of Department (with advice from the HR Advisor) will need to judge whether or not it is necessary to investigate the grievance ahead of any hearing taking place concerning an employee’s performance. Where a grievance has been raised which is linked to the application of the Procedure for Managing Poor Performance, the hearing manager may elect to arrange for the appointment of a three person panel to conduct a grievance hearing. The line manager will be called as a witness to address this panel as will the employee concerned. Bearing in mind the nature of any grievance raised in connection with allegations of poor performance, any panel appointed should be balanced. The Hearing Manager should be advised by the HR Advisor who will also be present at the hearing. Any grievance raised by an employee which does not relate to this Policy and Procedure, will be subject to UCL's Grievance Policy and will not be unduly delayed by application of the Procedure for Managing Poor Performance.

Hearing Procedure

2.8 At the Formal Hearing, the manager will remind the employee of the earlier informal discussions on performance (where these have happened) and the steps taken to support an improvement in their performance, including any reasonable adjustments where applicable. The manager will outline, providing examples, why the employee’s performance is still not considered to have reached the level required. In response the employee will be given the opportunity to explain their unsatisfactory performance and put forward any mitigating circumstances.

2.9 If, in the view of the manager, the employee is unable to provide a satisfactory explanation for their poor performance, a Formal Warning may be issued to the employee for unsatisfactory performance.

2.10 If a Formal Warning is issued verbally at the end of the hearing, a written notification of the outcome of the hearing should be provided within a maximum of 5 working days. This written notification should include:

  • The issues discussed;
  • Any agreed outcomes of the hearing, such as training, changes to working practices, contractual hours, and working conditions;
  • The specific improvements in performance identified including any agreed SMART objectives;
  • Other agreed actions;
  • A summary of the consequences of not making the necessary improvements to performance, including possible dismissal;
  • Outline the employee’s rights of appeal;
  • The terms and timescale within which improved performance will be measured and reviewed, which should normally be not less than four weeks and not more than three months; and
  • The details of a future hearing at the end of this period at which the employee’s performance will be reviewed formally.

2.11 If the manager does not feel that taking formal action is appropriate they may either advise the employee in writing that no further action will be taken. Alternatively, they may agree a timescale for a further informal review of the employee’s performance.

2.12 If a Formal Warning has been issued, it will be placed on the employee’s HR file for a period of twelve months and will be disregarded after this period has elapsed, provided that no further Formal Warnings occur during this period.

Stage 3 – Second Formal Hearing

2.13 If there has been insufficient improvement in performance within the designated timescale following a Formal Warning, or if further serious performance issues arise during this period, the hearing set for the performance review may be brought forward. The Head of Department or Division will normally chair the hearing unless they have already conducted Stage 2. In this case another senior manager should chair the hearing. The chair of a Stage 3 hearing is referred to as the ‘Hearing Manager’.

2.14 The employee should be invited in writing by the Hearing Manager to this Stage 3 Formal Hearing. The notification letter must set out a summary of the outstanding performance issues and make clear that possible outcomes of the hearing could include dismissal with notice. The employee should be provided with copies of any papers that will be considered at the hearing at least 5 working days before the hearing.

Hearing Procedure

2.15 At the hearing the line manager should present the history of the case, including the steps that have been taken to support the employee to achieve the required level of performance, including any reasonable adjustments where applicable, to the Hearing Manager. In response, the employee (or their companion) will be given the opportunity to explain the unsatisfactory performance. This will be the employee’s opportunity to put forward any mitigating circumstances or raise any issues the employee wishes to have considered.

2.16 The Hearing Manager will consider the explanation put forward both by the line Manager and the employee. If the employee is unable to provide a satisfactory explanation for their poor performance, the Hearing Manager may do the following:

  • Withhold a salary increment; and/or
  • Issue a Final Written Warning, placed on the employee’s HR file for a period of twelve months, and extend or renew the review period, with the line manager setting SMART objectives against which improvement will be measured, and review what support might be necessary to facilitate an improvement; or
  • Dismiss the employee on capability grounds (with appropriate notice or pay in lieu of notice).

2.17 The decision may be given verbally at the hearing. Written confirmation of the decision will be provided to the employee no later than 5 working days after the decision is made. The notification should outline rights of appeal against any sanction given. In the event of dismissal, the letter must outline the reasons for and date of dismissal together with notice arrangements.

2.18 When processing the employee as a leaver in MyHR, the leaver reason is "Dismissal due to Capability"

3. Staff Covered By Statute 18

3.1 For staff covered by Statute 18, formal action that may result in a Written Warning shall be managed in line with Stage 2 of this procedure (as outlined between paragraphs 2.1 and 2.10 of this Appendix). A hearing will normally be chaired by the Head of Department (except where natural justice dictates otherwise) and an Appeal heard by a Vice-Provost. Subsequent formal action, including actions that may result in dismissal, shall be dealt with under the provisions of Statute 18 Part III, paragraphs 14-20.

Appendix B: Policy Flowchart


Appendix C: Appeals Procedure

1. Principles Governing Appeals

1.1 Employees must submit their appeals in writing as detailed in the outcome letter, no later than 5 working days after they have received the written confirmation of the formal hearing decision. The decision taken at the formal hearing remains in force unless and until the Appeal Panel decides otherwise.

1.2 Appeal Hearings may be a review of the outcome of the Capability Hearing or a re-hearing depending on the grounds of the appeal. Employees must be specific about the grounds of an appeal, as these will form the agenda for the Appeal Hearing and may determine who should be present. If an appeal is submitted on the basis of seeking a re-hearing this must be clearly stated.

Appeals may be raised on grounds including:

  • Procedure: a failure to follow Procedure had a material effect on the decision
  • The Decision: the evidence did not support the decision reached by the Panel or Hearing Manager
  • The Penalty: was too severe given the circumstances of the case
  • New Evidence: which has come to light and was not available at the time of the hearing.

1.3 Appeals against a Formal Warning or the decision to extend the review period of a Formal Warning or the decision to withhold a salary increment will be chaired and heard by a senior manager, who has not previously been involved in the case, appointed by an HR Director.  This manager will be designated the Appeal Manager.

1.4 Appeals against dismissal will be heard by a panel of three senior members of staff who will not have been involved previously in the case, one of whom will be the Chair (Appeal Manager). They will be appointed by the HR Employee Relations Manager, in consultation with the relevant Dean or Vice-Provost and should reflect a balanced diverse profile, wherever possible.

1.5 References to ‘the Appeal Panel’ in this document also apply to a single-person Panel, i.e. the Appeal Manager acting alone. The Appeal Panel will be advised by a representative from HR and HR will provide a note taker.

1.6 Arrangements will be made for appeals to be heard as soon after an appeal has been lodged as is reasonably practicable.

1.7 The employee should be given a minimum of 10 working days' notice of the date of the Appeal.

1.8 The employee has the right to be accompanied to the Appeal Hearing by a colleague or trade union representative, as specified in section 4.5 of the Capability Policy. The employee may wish to call and present witnesses at this hearing. If the employee wishes to do this, they should inform the HR Advisor in writing of an intention to do so. This written notice should be received by the HR Advisor at least 8 working days ahead of the scheduled hearing date, include the names of any proposed witnesses to be called along with a brief explanation as to their relevance with regards to the matters to be considered by the Appeal Hearing. The Appeal Panel is entitled to query the purpose of any witness being called and may restrict  the number permitted, where in their view there will be no additional value or insight added by their presence.

2. Procedure

2.1 At the Appeal Hearing the Appeal Manager will explain the purpose of the meeting. The Appeal Manager will outline the process to be followed at the Hearing, how it will be conducted and the actions open to the Appeal Panel depending upon the evidence it hears. The manager who made the decision against which the appeal is being heard will attend the Appeal Hearing and outline the reasoning behind the original decision.

2.2 The employee will be asked to explain the grounds of appeal, including any new matters to be introduced. The Appeal Panel will take into account any relevant evidence which either party may present and consider its significance with regards to the sanction imposed at the original Hearing. If witnesses are called, both parties and the Appeal Panel will have an opportunity to question them. At the end of the Hearing, the employee will have an opportunity to summarise the key issues in the case. At the end of the Hearing, once the relevant issues have been aired sufficiently, the Appeal Manager will (after an appropriate adjournment) briefly summarise the findings of the Appeal Panel and outline its conclusions.

2.3 The possible outcomes from an Appeal are:

  • The Appeal is not upheld and the formal action or sanction of the original Hearing stands unchanged;
  • The Appeal is not upheld, but the Appeal Panel imposes a lesser sanction;
  • The Appeal Panel agrees to reduce the period for which a Formal Warning or Final Written Warning remains ‘live’;
  • The Appeal is upheld and the sanction imposed by the original Hearing rescinded.

3. Decision

3.1 The Appeal Hearing decision will be made carefully and without undue delay. It will usually be conveyed verbally to the employee within one working day of the Hearing.

3.2 The outcome of the Appeal Hearing should be confirmed in writing to the employee by the Appeal Manager no later than 5 working days after the decision has been conveyed verbally. Notes of the Appeal Hearing can be made available if a request is made to the HR Advisor by the employee. Any such request should be received by the HR Advisor no later than 10 working days after the written decision of the Appeal Panel has been issued.

3.3 If an appeal against dismissal is upheld, the employee shall be paid in full for the period from the date of dismissal and continuity of service will be maintained.

3.4 The decision of the Appeal Panel is final.

Appendix D - UCL Performance Improvement Plan