Grievances and disciplinary procedures

Settling grievances

Policy and introduction

 

1. It is established policy that all employees should have available to them a fair and effective procedure for the speedy resolution of grievances. In particular, they should -

• be given a fair hearing by their immediate supervisor or manager concerning any grievances they may wish to raise
• have the right of appeal to a more senior manager against a decision made by their immediate supervisor or manager
• have the right to be accompanied by a fellow employee of their own choice (this may be a recognised trade union or staff association representative/shop steward) when raising a grievance or appealing against a decision

2. The aim of the procedure is to settle any grievance as near to its point of origin as possible and without unreasonable delay

3. All stages in the handling of a grievance should be recorded on the form (POG34) provided at Annex A for that purpose. One copy should be retained by the employing authority and one copy handed to the aggrieved employee

4. In the interests of simplicity, the masculine pronoun is used throughout the procedure but it applies equally to male and female employee

The procedure

The procedure set out below is to be used.

Stage 1

1. An employee who has a grievance on matters relating to his employment should discuss the same with his line manager/foreman/supervisor. Where this is impracticable for any reason, the grievance may be raised with another appropriate person
   
   
2. If the employee is dissatisfied with the reply he should refer the matter to his recognised trade union official/shop steward who may then take the matter up with the line manager/foreman/supervisor or another appropriate person
   
   
3. If the grievance has not been resolved satisfactorily, where practicable within 3 working days of being raised, it should be put in writing by the aggrieved employee using the form at Annex A. One copy should be retained by the employee and the other copy should be handed to the person who dealt with Stage 1 for transmission to a more senior manager who will conduct the second stage meeting. The aggrieved employee must be told which manager will deal with Stage 2 of the procedures

 

Stage 2

1. Where practicable, the more senior manager, whose identity has been given to the employee (by name or by reference to his post) must arrange a meeting with the parties within 4 working days. The employee may be accompanied, if he wishes, by a work colleague (who may be a recognised trade union official/shop steward) and should be reminded of this right when the meeting is being arranged
   
   
2. The nominated more senior manager who is to conduct the meeting may seek advice on procedural matters from the Office of Human Resources, if he so desires
   
   
3. As soon as possible after the meeting the nominated senior officer should confirm the decision in writing to the parties
   
   
4. If the employee concerned remains aggrieved in respect of the original grievance he, (or his recognised trade union official/shop steward), may submit a written request to the Chief Officer to move to the third and final stage in the procedure giving the reasons for this request

 

Stage 3

1. Where the Chief Officer of the employing authority receives a written request for the third and final stage to be activated he shall arrange to hear the grievance personally or by a panel of not more than 3 senior managers. The person or persons hearing the grievance should have had no previous direct involvement in handling it
   
   
2. The Chief Officer shall invite the parties to attend the appeal hearing which shall be held, where practicable, within 7 working days of his receiving the written request
   
   
3. The decision of the appeal body shall be notified to the parties as soon as possible after the hearing and shall be final

 

Note 1

The foregoing procedure does not exclude the possibility that:-

• an employee and his recognised representative may approach the foreman in the first instance
• an employee may be represented or be without representation if he chooses
• it may operate as a disputes procedure where a group of employees share a common grievance and where this occurs the group may be represented by a recognised trade union official

Note 2

The handling of grievances and disputes using the above procedure must operate fairly but the normal rules of evidence used in a court of law will not apply.

Note 3

It will not be appropriate to use the foregoing procedure in relation to disciplinary matters where a different procedure will operate.

Note 4

Exceptionally, there is a possibility that an issue which remains unresolved after the grievance procedures have been exhausted could be referred to any established mechanism for conciliation or as a dispute under the Trade Disputes Act.

 

 

A) Aim | B) Scope | C) Principles | D) Procedure

(a) Stage 1 - Oral warning | (b) Stage 2 - Written warning | (c) Stage 3 - Final written warning | (d) Stage 4 - Dismissal | (e) Gross Misconduct | (f) Suspension | (g) Recognised Trade Union lay officials | (h) Appeals | (i) Model procedure for use at hearing of appeals against dismissal or other serious disciplinary action

A) Aim

1. These procedures are concerned with emphasising and encouraging improvements in individual conduct. Their aim is to ensure that the standards of conduct, attendance and job performance expected of employees are observed by providing a method of dealing with alleged breaches and deficiencies in a manner which is consistent and scrupulously fair
   
   
2. It is important that all employees should know what standards of conduct are expected of them and it is important that disciplinary cases are considered against a full understanding of any relevant personal, domestic or social circumstances
   
   
3. It is also important and a requirement of the Employment Act 2006 that staff are told who will be responsible for dealing with the different stages in the disciplinary procedures and to whom they can apply if dissatisfied with any discipline decision affecting them. (For guidance, it is suggested that the immediate supervisor should deal with Stages 1 and 2; a more senior manager should deal with Stage 3; and an appropriate more senior officer designated by the Chief Officer (or the Chief Officer himself) should be responsible for Stage 4 and all cases of gross misconduct). 

B) Scope

4. These procedures will apply to all Public Services Commission Manual and Craft Workers. In the interests of simplicity, the masculine pronoun is used throughout but the procedures apply equally to male and female employees

C) Principles

5. If a complaint is made against an employee he must be made aware of it and the investigation procedures that will follow
   When the investigation has been completed, the nature of the complaint should be confirmed (in writing) to the employee and he should be given the opportunity to reply to it, in writing if he so wishes.
   
   
6. No employee will be disciplined unless and until the complaint made against him has been fully investigated and the procedures followed
   
   
7. At every stage in the formal procedure the employee should be advised of his right to be accompanied by a recognised union representative, shop steward or other representative during the disciplinary interview
   If a complaint is proven, the employee should be given the opportunity to make a plea in mitigation before a penalty is awarded
   
   
8. No employee should be dismissed for a first breach of discipline except in the case of gross misconduct (see E below) when the penalty may be summary dismissal without notice or payment in lieu of notice
   
   
9. Where an allegation of gross misconduct is made against an employee consideration must be given to suspending the employee with pay (see F below.) while the matter is investigated
   Normally, in such circumstances, the period of such suspension should not exceed 10 working days but it may be extended if it has been decided to await the decision of the Courts in relation to an alleged breach of the law.
   
   
10. An employee will have a right of appeal against any disciplinary penalty imposed to an individual or body higher than that taking the disciplinary action
    
    
11. The procedure may be implemented at any stage if the employee's alleged misconduct warrants such action
    
    
12. Where an employee is warned about his future conduct or performance he should be given a specified period in writing in which to meet the required standard and his conduct or performance (as the case may be) should be monitored carefully throughout that period
    
    
13. Should any disciplinary action be reconsidered and effectively withdrawn, any written reference to it should be removed from the employee's personal file and the employee notified accordingly.

D) Procedure

14. Except in the case of minor faults or incidents, which should be dealt with informally and promptly, usually by the immediate supervisor or line manager, the following formal procedure will be used:

(a) Stage 1 - Oral warning

If the conduct or performance of an employee has been found not to meet acceptable standards, the employee should be seen by his supervisor or first-line manager, accompanied by a recognised union representative or other representatives, if he wishes, and given the opportunity to give an explanation;

If the complaint is proved, the employee:

• should be given a formal oral warning by the appropriate supervisor and advised of the reason for it
  
  
• may be informed of the reason for the warning in writing if the employee requests it
  
  
• should be advised that it is the first stage of the disciplinary procedure
  
  
• should be advised of his right of appeal, the right to be accompanied if he wishes by a recognised union representative or other representatives, how to make it and to whom
  
  
• should be told that a record will be kept of the oral warning; that his conduct and performance will be monitored; and also told of the period of satisfactory conduct and performance after which the warning will be disregarded for disciplinary purposes
  
  
• should be advised that the commission of a similar act, or of a subsequent different offence, may result in further disciplinary

(b) Stage 2 - Written warning

If the alleged offence is a serious one, or there is a repetition of an earlier offence, or a further offence is alleged to have been committed during the currency of an earlier oral warning, the employee should be seen by his supervisor or first-line manager (or other more senior manager, if appropriate), accompanied by a recognised union representative or other representative, if he wishes, and given the opportunity to give an explanation

If the complaint is proved, the employee:

• should normally be given a written warning by the appropriate manager specifying the reasons for it, details of the complaint, the improvement required and over what period of time his conduct and/or performance will be monitored and the improvement will be expected
  
  
• should be advised in writing that this is the second stage of the disciplinary procedure and that action under the third stage will be considered if there is no satisfactory improvement within the above timescale
  
  
• should be advised of his right of appeal, how to submit it and to whom, and his right to be accompanied by a recognised union representative or other representatives, if he wishes, at any appeal hearing
  
  
• should be told that a copy of the written warning will be kept on his personal file and told also of the period of satisfactory conduct and performance after which it will be disregarded for disciplinary purposes

(c) Stage 3 - Final written warning

If there continues to be a failure to improve and conduct or performance is still unsatisfactory, or if the misconduct is sufficiently serious to warrant only one written warning but insufficiently serious to justify dismissal, or if the conduct is sufficiently serious to warrant dismissal (even though it may not come under the heading of gross misconduct) but there may be strong mitigating circumstances, the employee should be seen by an appropriate senior manager, accompanied by a recognised union representative or other representative, if he wishes, and given the opportunity to give an explanation.

If the complaint is proved, the employee:

• should be given a final written warning (which may also be the first written warning) by the manager including the reasons for it and details of the complaint, should be told that his conduct and/or performance will be monitored, and informed that failure to demonstrate a satisfactory improvement within a reasonable specified period will lead to dismissal (ie the fourth stage of the disciplinary procedure)
• may be suspended without pay as a disciplinary penalty for up to a maximum of 5 working days in addition to a final written warning, (but the likely effect of such a suspension on the employee should be considered carefully before this course is decided upon)
  
  
• should be advised of his right of appeal, the right to be accompanied by a recognised union representative or other representatives, if he wishes, how to make it and to whom
  
  
• should be told that a copy of the final written warning (and a note of any other penalty imposed) will be kept but that, in the case of the warning, it will be disregarded for disciplinary purposes after a specified period of satisfactory conduct and performance

(d) Stage 4 - Dismissal

If the conduct or performance continues to be unsatisfactory or the employee still fails to meet the prescribed standards in spite of the warning(s) given he should be seen by the Chief Officer or an appropriate senior manager designated by him, accompanied by a recognised union representative or other representatives, if he wishes, and given the opportunity to give an explanation. If on examination of the facts the complaint is proved, the officer dealing with the matter will consider any mitigating circumstances advanced and may inform the employee that one or more of the following disciplinary penalties will be imposed:

• a final written warning (unless one has been given under Stage3)
• monetary payments, either by way of a fine or by way of restitution (in whole or in part) of loss or damage caused by the employee
• suspension without pay
• dismissal, the reasons for this decision and the date on which employment will be terminated

The employee should be advised of his right of appeal, the right to be accompanied by a recognised union representative or other representatives, how to make it and to whom it should be addressed

This decision will be confirmed in writing.

(e) Gross Misconduct

15. An employee may be summarily dismissed without notice or payment in lieu of notice by the Chief Officer or a senior manager designated by him in cases constituting gross misconduct. The following list, which is not exhaustive, contains examples of actions which will normally be regarded as gross misconduct:

• Fighting and violent behaviour (including assault on another person)
  
  
• Deliberately ignoring instructions given with regard to the health and safety at work rules and thereby endangering own or another's physical well-being or risking unacceptable loss or damage
  
  
• Obscene behaviour
  
  
• Intoxication induced by alcohol or drugs (not prescribed by a medical practitioner) while on duty or liable to be called for duty
  
  
• Fraud (including fraudulent clocking offences and falsification of records)
  
  
• Wilful damage, or unauthorised use of the employers' property
  
  
• Stealing property belonging to the employer or another employee
  
  
• Wilful disobedience of reasonable instructions
  
  
• Criminal conviction arising from an offence committed within or outside of normal working hours and where the offence is of a nature so as to render the employee unsuitable for the type of work employed or unacceptable to other employees. An offence of unlawfully possessing a controlled drug will be deemed in all cases to be an offence of such a nature

The above list is not intended to be exclusive or exhaustive.

16. Where it is alleged an employee has committed an act of gross misconduct he may be suspended from work on full pay by an appropriate senior manager while the matter is fully investigated. (The period of suspension on pay should not normally exceed 10 working days but may be extended if the decision of the Courts is relevant to an alleged breach of the law).

(f) Suspension

17. Where an employee has been suspended with pay while an investigation is conducted (but not where the suspension is in the nature of a disciplinary penalty):

• the suspension will be terminated and the employee shall receive all monies to which he would have been entitled but for the suspension (excluding overtime) in the event of it being adjudged that the employee was not blameworthy
  
  
• if the employee is adjudged blameworthy but is allowed to continue in employment, the employer will have discretion whether to make up the wages paid during the period of suspension to the level of earnings he would have achieved (excluding overtime) had he not been suspended
  
  
• if the employee is dismissed, he will not be entitled to wages other than the sum (if any) due up to the date of suspension but will be allowed to retain any sum already paid to him as an allowance during the period of suspension

(g) Recognised Trade Union lay officials

18. Normal disciplinary standards apply to the conduct and performance of recognised union lay officials as to other employees, but no disciplinary action beyond an informal oral warning should be taken against them until the circumstances of the case have been discussed by management with a senior trade union representative or full-time official of the recognised trade union.

(h) Appeals

PSC M&C 15-001 22.09.2015

19. An employee has a right of appeal against any disciplinary decision against him. An appeal for a disciplinary sanction short of dismissal will be heard by an authority higher than that which took the decision or by the Chief Officer or an Appeals Committee appointed by the Department, Board or Office concerned. The Chief Officer may authorise another senior officer to hear the appeal either sitting alone or with 2 other appropriate managers. In the case of an appeal against dismissal from the Public Services Commission, an employee shall have a right of appeal in accordance with paragraph 19A below

1. Appeals against dismissal shall be notified to the Secretary of the Commission who will arrange for it to be heard by a Panel of three persons, comprising Government employees from a different Department, Board or Office (or combination thereof), than the one in which the employee is deployed.

The Appeal Panel will be drawn from separate lists of 'hearing officers' maintained by the Secretary of the Commission and comprising:

1. A list of persons to act as Panel Chair, who must be graded Senior Executive Officer or above (and equivalent)
2. A list of persons occupying management roles within Government
3. A list of persons occupying any role within Government, serving on the panel to provide an independent perspective.

Persons appointed to the lists of 'hearing officers' may self-nominate or, with their consent, be nominated by a third party.

The Appeal Panel may, at its discretion, seek independent legal advice should it consider this necessary when considering the appeal.

The Appeal Panel will, in all cases, be advised by a representative of the Office of Human Resources.

20. Appeals must be lodged in writing within 3 working days of the oral warning being given or the date of the written notification of other penalties except in the case of appeals against dismissal where the appeal must be lodged in writing within 5 working days.
21. The person or body considering the appeal may determine the procedure to be followed at the hearing but a model procedure which may be used or modified is attached at Section I below.
22. At the appeal hearing particular attention should be paid to any new evidence that was not available earlier and the parties should be given the opportunity to comment on it. It may be appropriate in some cases for the hearing to be adjourned to allow for such evidence to be investigated or for the matter to be referred back to the manager against whose decision the appeal has been lodged.

(i) Model procedure for use at hearing of appeals against dismissal or other serious disciplinary action

23. The person or body considering an appeal against dismissal or other serious disciplinary action may determine the procedure to be followed at the hearing but the following model procedure may be used or modified:

1. The person or body considering an appeal shall be given the power to determine the appeal. Where a Committee is appointed it will normally comprise 3 persons none of whom have had any previous knowledge of, or involvement in handling, the case
   
   
2. The employee shall be given notice in writing at least 7 working days in advance of the time and place of the hearing and shall be allowed to be represented by a companion (who may be a work colleague, a recognised union representative or shop steward) of his choice and shall be enabled to call witnesses and produce documents relevant to his defence at the hearing. He may also be advised in advance of the hearing of the procedure to be used at the hearing
   
   
3. The representative of the employing authority shall put the case in the presence of the appellant and his companion and may call witnesses
   
   
4. The appellant (or his companion) should be given the opportunity to ask questions of the employing authority's representative on the evidence given by him or any witnesses whom he may call
   
   
5. The person hearing the appeal (or the Committee) may ask questions of the employing authority's representative and witnesses
   
   
6. The appellant (or his companion) should put his case in the presence of the employing authority's representative and should be allowed to call such witnesses as he wishes
   
   
7. The employing authority's representative should have the opportunity to ask questions of the appellant and his witnesses
   
   
8. The person hearing the appeal (or the Committee) may ask questions of the appellant and his witnesses
   
   
9. The employing authority's representative and the appellant (or his companion) should have the opportunity to sum up their case if they so wish
   
   
10. The employing authority's representative and the appellant (and his companion) and any witnesses should be asked to withdraw
    
    
11. The person hearing the appeal (or the Committee) with the person appointed to act as Secretary, should deliberate in private only recalling the employing authority's representative and the appellant to clear any points of uncertainty on evidence already given. If recall is necessary both parties should return notwithstanding only one is concerned with the point giving rise to doubt
    
    
12. The person hearing the appeal (or the Committee) should announce the decision to the parties personally or in writing as may be determined [unless for special reasons the person hearing the appeal (or the Committee) only has the power of recommendation to the employing authority in which case a report will be submitted to the authority and the parties so advised]

1. Introduction & Definition

1.1 The Isle of Man Government is committed to supporting and developing its employees in a fair and equitable manner to ensure that they are able to fulfil their roles and responsibilities to a standard of competence.

1.2 Capability relates to the skills, aptitudes, mental or physical health or attendance at work of an employee and should not be confused with the Disciplinary Procedure which deals with an employee’s conduct. A clear distinction must be drawn between lack of skill or ability and misconduct. The latter normally involves a measure of wilfulness for which some form of action under Disciplinary Procedures may be appropriate.

1.3 At each stage of the Capability Procedure managers should give consideration to suitable alternative employment in the same Department if appropriate (consideration can be given to suitable alternative roles within other Departments), flexible working or offering a voluntary downgrading if this can be accommodated. Equally employees may also consider requesting flexible working, redeployment or voluntary downgrading.

1.4 There may be occasions when some or all of the procedure is undertaken by another appropriate manager, for example during absence or if the specific circumstances of the case warrant it.

1.5 Where an employee’s poor performance is related to a qualifying disability under the Equality Act 2017, the Employer has a duty to make reasonable adjustments in the workplace and reasonable adjustments to the role. The employer must also not discriminate.  Further guidance can be found in Annex A.

2. Scope

2.1 The Capability Procedure applies to individuals employed under the following terms and conditions:

• Public Services Commission Civil Service
• Public Services Commission Manual And Craft Workers

2.2 The Capability Procedure applies to all employees including those on probation and bank, casual and relief who are employees, but does not cover agency staff.

2.3 The Office of Human Resources (OHR) and relevant Department, Board or Office Privacy Notices describe how personal information about an employee is collected and used during and after their working relationship within the Isle of Man Government and what legal basis there is for gathering and retaining that information in accordance with the Data Protection Act 2018 including the General Data Protection Regulation. For further details about the information collected and retention periods, please refer to the Office of Human Resources and relevant Department, Board or Office Privacy Notices which are incorporated in to this procedure by reference.

3. Purpose

The purpose of the Capability Procedure is to:

a) Assist and encourage employees to achieve and maintain the required standards of job performance/attendance.

b) Address unsatisfactory performance/attendance and allow employees the opportunity to improve.

c) Ensure issues in relation to performance and attendance are dealt with efficiently and that clear outcomes are identified at all stages.

d) Ensure a consistent, fair approach for employees who experience difficulties in performing the duties required of their post or attaining the standards required.

4. Right to be accompanied

4.1 At each stage of the formal procedure the employee should be advised of their right to be accompanied by a work colleague or trade union representative.

4.2 A member of the OHR may be present to clarify issues and provide advice to both parties if necessary.  

4.3 There is no right to be accompanied by a legal representative other than in cases where the allegation is such that in addition to the risk of dismissal, the employee would also be at risk of being prohibited from working within their profession or with young or vulnerable people.

5. Referral to Professional Bodies

5.1 Certain groups of professional staff are responsible for complying with the relevant standards set by their professional regulatory body[1]. At any stage during the Capability Procedure, consideration may be given to refer the individual to their relevant professional regulatory body for consideration of action by that body even if the local investigation is not complete.

5.2 The responsibility for referral usually rests with a manager dealing with the case or chairing the meeting/ hearing, depending at what stage referral is deemed necessary. The manager should make a judgement about whether to refer, based on the individual circumstances of the case and in conjunction with guidelines issued by the relevant professional regulatory body.

5.3 Where required the manager must always report a case to the relevant local services and professional regulatory body if they believe the conduct, competence, health[2] or character of a professional presents a risk.

5.4 The employer may take action under the Capability Procedure regardless of and independent of the outcome of any referral to a professional regulatory body.

6. Stages

6.1 Before the stages in the formal procedure are engaged, the employee should receive informal verbal feedback from their manager setting out any concerns about performance and/or attendance and how this can be improved. The following stages of the Capability Procedure are intended to be used when such informal discussions do not lead to the employee improving performance or attendance to an acceptable level.

7. Stage 1

7.1 When a manager believes that an employee’s performance and/or attendance falls below the standards expected or they are experiencing difficulties with certain areas of work, the manager should invite the employee to a formal meeting to have a discussion that will consider the factors which may be contributing to the performance and/or attendance issues. If the reason for capability is attendance then this process can still be commenced if the employee is absent from work and they fail to engage with the process, but this should not be undertaken if the employee is medically certified as unable to engage with the process. Particular care needs to be taken if the reason for Relates to a mental or physical condition that may be defined as a disability as set out in the Equality Act 2017. You should consult with OHR for advice as to whether the employee may meet the definition of disability.

7.2 The purpose of this discussion is to establish the likely reasons for the poor performance/attendance and to:

a) Establish the type and level of support the manager can provide.
b) Confirm the standards of performance / attendance expected.
c) Discuss which areas of performance / attendance the employee needs to improve.
d) Assess whether training or retraining is necessary.
e) Assess whether adaptations to the workplace may be required.
f) Identify whether the employee might appreciate some closer supervision and support or mentoring.
g) Assess whether welfare[3] support may be necessary.
h) Determine, where relevant, whether any stress management risk assessments may be necessary
i) Identify the improvements required and agree an action plan as per 7.4
j) Explain the action that could be taken if there is no improvement.

7.3 Managers should also consider making an Occupational Health referral in conjunction with the employee and allow time to consider any recommendations made by the Occupational Health Adviser, which may include suggestions for reasonable adjustments to the role and/or workplace. Occupational Health cannot legally advise if an employee has a disability within the meaning of the Equality Act 2017. Advice should be taken from OHR where Occupational Health indicates that there may be a disability issue.

7.4 The manager should subsequently confirm support and the outcome to the employee, in writing, and that the Manager will monitor performance during the review period against the agreed action plan.
 

7.5 Where the employee meets the standard(s) required within the timescale set, the Capability Procedure should cease and the employee will be given  both written confirmation and in any other form required by the employee[4] that:

a) no further action will be taken at this time;
b) their performance/attendance shall be monitored in the normal way. 

7.6 If after the agreed review period the employee has not shown sufficient improvement, the manager may progress to Stage 2. 

8. Stage 2

8.1 If performance/attendance remains unsatisfactory, a further review meeting should take place - normally no later than 3 months after the first stage.  The employee should be invited in writing to a capability meeting for which a minimum of 7 working days’ notice should be given.  

8.2 It is the employee’s responsibility to arrange for a work colleague, trade union or staff association representative to attend with them, should they wish to be accompanied, and to ensure that the person they choose to accompany them is available to attend meetings. If their chosen companion is not available on the proposed meeting date, the employee can propose an alternative time provided that it is reasonable and preferably within 7 working days of the original scheduled date, having regard to the availability of the other parties involved.

8.3 At this meeting the manager should allow a positive and constructive discussion at which the manager will give a full explanation of the performance/attendance issues. The meeting should also consider factors from the employee which may be contributing to the employee’s poor performance/attendance and consider options for addressing the issues, such as redeployment, welfare support or occupational health advice.

8.4 Following the stage 2 meeting, regular monitoring and assessment should be undertaken over a predetermined period; this will be dependent upon individual circumstances and may also involve further meetings to support and discuss progress.  The review period may be determined by workflow cycles. The employee should be advised that help and encouragement will be given. 

8.5 Where the employee meets the standard(s) required within the timescale set after the Stage 2 meeting, the Capability Procedure should cease and the employee will be given both written confirmation and in any other form required by the employee that:

a) no further action will be taken at this time;
b) their performance/attendance shall be monitored in the normal way;
c) it would be expected that the improved performance/attendance would be sustained and if standards failed to be maintained within an agreed period the procedure will recommence at stage 2.

8.6 Where an employee fails to meet the standard(s) required at the end of the agreed timescale set, consideration should be given to:

a) Options for redeployment (including within a different Department, Board or Office).
b) Medical advice/treatment where performance attendance issues relate to ill health.
c) More intensive counselling/advice if the reasons for the problem or the solution are not clear.
d) Whether all reasonable adjustments have been made if the issues relate to illness or disability.

8.7 The employee must be made aware that failure to improve within a specified time period may justify dismissal on the grounds of capability.  The agreed course of action and the consequences of failure to improve must be confirmed in writing to the employee as soon as possible after the meeting.

8.8 If no alternative option is suitable the employee should be informed of this and given written notification that the matter will progress to Stage 3 of the Capability Procedure.

9. Stage 3

9.1 If, despite encouragement and assistance, sufficient improvement has not occurred and is considered unlikely, a Stage 3 Capability Hearing will be convened usually from end of stage 2.

9.2 The employee should be notified in writing (and in any other form required by the employee) that they are required to attend a Stage 3 Capability Hearing, for which a minimum of 7 working days’ notice should be given. The letter should specify the areas of performance/attendance which remain unsatisfactory. Additionally, the notification should state that the possible outcome could be dismissal and the employee will be given an opportunity to put forward their case/views at the Hearing.

9.3 The manager should prepare a detailed capability report and provide the employee with all relevant and supporting documentation and a copy of the report at least 10 working days prior to the hearing.  The report must also be forwarded by the manager to the Chair of the hearing panel. 

9.4 The Hearing panel  will be the same as that which is defined for gross misconduct cases within the Disciplinary procedure for the employment group concerned. A representative of OHR will usually attend this hearing in an advisory capacity.

9.5 The role of the Hearing panel will be to take into consideration the facts contained within the report, including any alternative options that were considered to manage and support the employee.

9.6 Following the Capability Hearing, the hearing panel, can take one of the following courses of action:

a) A decision to take no further action.

b) Allow further time for improvement (with a final warning). If the panel is of the view that further time is required, it should notify the employee of the performance/attendance improvements still required, including targets and timescales.  If the standard(s) are met during this extended time period, no further action should be taken, apart from monitoring, to ensure such improvements are sustained for a  no more than 6 months. If the standards are not met or the improvements are not sustained for the 6 months the procedure may re-commence at Stage 3.

c) Redeployment and other options. The employee may be offered other options, for example, suitable alternative roles within the same Department, if opportunities available( if appropriate consideration can be given to suitable alternative roles within other Departments), ‘flexible working’ or a voluntary downgrade if these can be accommodated. If a suitable option is available, then the offer shall be made in writing, explaining why it is being made, the possible consequences of refusing it, and giving the employee reasonable time to consider the offer and to discuss it with their work colleague or trade union/staff representative.  Where no alternative role can be found, or if the employee refuses the offer, the panel should consider one of the other options available at this Stage. If redeployed to another Department an appropriate level of training will be provided.

d) Dismissal with notice or pay in lieu of notice. If it is determined that dismissal is appropriate, this decision will be confirmed in writing within 5 working days of the hearing stating the employee’s right to appeal and to whom the appeal should be addressed. The employee shall be informed that the appeal must be lodged in writing within 5 working days of the date of the dismissal letter and must state the grounds on which the appeal is made.  When a dismissal is proposed the panel should consider whether adequate evidence has been presented that alternative employment is not available or appropriate.

10. Appeals against Dismissal

10.1 Employees who have been dismissed following a Stage 3 Capability Hearing have the right of appeal. The purpose of the appeal hearing is to review the decision made at the Stage 3 hearing. 

10.2 The following are examples of grounds for appeal:

a) The original hearing was in some way procedurally unfair.
b) The penalty of dismissal was excessive in relation to the performance/attendance issue.
c) New information of a material nature has come to light after the original hearing.
d) There was a failure to make reasonable adjustments for a disability

10.3 The appeal process is that which is defined for the Gross Misconduct Procedure.

11. Procedural Matters

11.1 The Capability Procedure could be implemented at stage 3 immediately depending upon the seriousness and circumstances of a case; however advice must be sought from OHR as to whether bypassing earlier stages can be justified.

The following may be examples where progression to stage 3 could be justified:

a) being long term absence with no prognosis for return to work
b) Position of Authority (where the poor performance could, given the seniority of the individual, have potentially severe effects on the team /organisation).
c) Where there is a sudden and unexpected deterioration in the employee’s ability to fulfil the role.( despite reasonable adjustments having been implemented in the event of an employee’s disability where applicable)
d) The actual or potential consequences of single errors are so serious that the submission of a capability report has to be contemplated.
e) Instances where external factors make employment unsustainable e.g. additional qualification requirement, loss of registration/licence.

11.2 At each stage of the Capability Procedure, consideration should be given to whether the failure to meet standard(s) required in relation to unsatisfactory performance and/or poor attendance is related to other factors such as a disability, as defined by the Equality Act 2017 or acute or sudden personal/ domestic difficulty and if so, whether any reasonable adjustments could be made to the requirements of the job or other aspects of the working arrangements to support the employee. The reasonable adjustments if they can be accommodated, should, be made as soon as practicable. Advice should be sought from OHR in relation to reasonable adjustments. A failure to comply with the duty to make reasonable adjustments is unlawful where the employee has a disability.

11.3 Where the employee requests ill health early retirement, this should be handled in accordance with the employee’s sick pay provisions within their terms and conditions for which there is a separate appeals procedure. Any request would be managed concurrently with the Capability Procedure and does mean the procedure would be suspended, depending on the merits of each case, whilst the ill health retirement application was in progress.

11.4 Sometimes an employee may raise a grievance, or a complaint connected to the case during the course of a Capability Procedure.  In these circumstances the case should continue in parallel and any issues should be raised through either the Grievance or Fairness at Work procedures. If the Grievance or Fairness at Work complaint is upheld then the capability process may take this into consideration. In some cases the grievance may recommend that the capability process is not progressed and where the Grievance /Fairness at Work/Capability are running concurrently, any dismissal should not occur before any outstanding grievance or complaint connected to the capability is concluded. This only applies where there is a direct link between the capability and the grievance/complaint. 

12. Privacy Notice

The Office of Human Resources (OHR) and relevant Department, Board or Office Privacy Notices describe how personal information about an employee is collected and used during and after their working relationship within the Isle of Man Government and what legal basis there is for gathering and retaining that information in accordance with the Data Protection Act 2018 including the General Data Protection Regulation. For further details about the information collected and retention periods, please refer to the Office of Human Resources’ Privacy Notice and the relevant Department, Board or Office’s Privacy Notice which are incorporated in to this document by reference.

Annex A

Avoiding Discrimination when handling capability issues

This section provides guidance for managers to avoid discriminating unlawfully when handling capability issues in the workplace.

A. Capability Procedures and Criteria

The procedures must be applied fairly, in accordance with employment law, and avoid unlawfully discriminating directly or indirectly against people with protected characteristics. 

As a reminder, the nine protected characteristics under Equality legislation are:

• disability,
• pregnancy and maternity,
• age,
• religion or belief,
• race,
• marriage and civil partnership,
• gender reassignment,
• sex,
• sexual orientation.

B. Capability Procedures and Disability

Under the Equality Act 2017 a person has a ‘disability’ if they have a physical or mental impairment that has a substantial and long-term adverse impact on her or his ability to carry out normal day-to-day activities.

A disabled person is discriminated against if s/he is treated unfavourably because of something arising in consequence of their ability, and the person discriminating cannot show that the treatment is a proportionate means of achieving a legitimate aim.  There is also protection for direct and indirect disability discrimination.

The Equality Act 2017 requires the employer to make ‘reasonable adjustments’ where:

• an employer’s provision, criteria or practices put a disabled person at a ‘substantial disadvantage’ compared with a person who is not disabled;
• an employer’s premises have physical features which puts a disabled person at a substantial disadvantage;
• a disabled employee will be put at a substantial disadvantage if they are not provided with an auxiliary aid.

A person with a disability may be discriminated against if they are treated less favourably due to their disability when compared to someone without a disability. This is direct discrimination can never be justified.

A person with a disability may be discriminated against because an apparently neutral practice, provision or criterion has the effect of treating the disabled person less favourably putting them at a particular disadvantage when compared to a person without a disability. This is indirect discrimination which may be objectively justified if it can be shown that the difference in treatment was a proportionate means to a legitimate aim.

A disabled person may also be discriminated against if they are treated unfavourably because of something arising in consequence of their disability. There is no requirement to compare the unfavourable treatment to another person.  This is discrimination arising from a disability which may be objectively justified if it can be shown that the difference in treatment is a proportionate means of achieving a legitimate aim. 

A legitimate aim is the reason behind the discrimination.  The reason must not be discriminatory itself and it must be a genuine or real reason.  An example of a legitimate aim may be health and safety of individuals, the efficient running of the service or the requirements of the business.  Costs alone are not a legitimate aim.

The method of achieving the legitimate aim must be proportionate, which means it must be appropriate and necessary and that there are no other less discriminatory ways of achieving the same aim.

The Equality Act 2017 requires the employer to make ‘reasonable adjustments’ where:

• a provision, criteria or practices put a disabled person at a substantial disadvantage compared with a person who is not disabled;
• premises have physical features which puts a disabled person at a substantial disadvantage;
• a disabled employee will be put at a substantial disadvantage if they are not provided with an auxiliary aid.

As an employer, you should ensure that you have first considered the legal duty to make reasonable adjustments before using the capability procedure.  If despite the reasonable adjustments, a disabled employee is not performing then you should implement the procedure. 

There will be ‘absence triggers’ that may initiate this procedure. You should first consider whether those ‘absence triggers’ should be modified to become a ‘reasonable adjustment’ in the particular circumstances of the individual with a disability.  What is ‘reasonable’ can depend on the alteration being sought by the disabled employee for an illness linked to their disability. An employer is not expected to make unreasonable adjustments to its sickness absence policy and ‘absence triggers’ for a disabled employee. You should be cautious however as disputes over sickness absence linked to disability might be considered as discrimination arising from disability, where the employee only needs to evidence unfavourable treatment because of something connected to their disability. It is advisable to seek further guidance from OHR.

C. Capability Procedures and Pregnancy and Maternity

Action under the capability procedures should only be taken against a pregnant employee  or employee on maternity leave if the action is about a matter that has nothing to do with her pregnancy or maternity.  Action must not be taken if this relates to the employee’s performance which has been poor because of pregnancy related illness or another reason related to her pregnancy or maternity.

If the performance in unrelated to the pregnancy or maternity, managers should ensure that the employee is well enough to attend meetings, and if not, timescales may need to be extended to accommodate specific circumstances e.g. maternity leave.

The employee may assume that you are taking action because she is pregnant or on maternity leave. You must show that this is not the case, and give clear examples of the reasons that are not connected to the pregnancy or leave.

D. Capability Procedures and Age

The Equality Act 2017 protects the rights of people who share the protected characteristic of ‘age’ or ‘perceived age’. A reference to age includes a particular age, an age range and an age group.  However, there is no single age where someone becomes an ‘older worker’.  It is important with older workers, not to assume that performance deteriorates with age. Performance should be managed in the same way for every employee. 

The Public Services Commission does not have a set compulsory retirement age, (except for some specific exceptions due to the requirements of the role), meaning employees can retire when they wish. 

If there is a performance issue, the manager and the employer must give the employee a fair chance to reach and maintain an acceptable standard, no matter what their age. Only if the employee fails to improve after reasonable steps have been taken to help them, can the employer consider dismissing them for under-performance. And the manager and the employer must ensure the dismissal for under-performance is based on relevant facts. Under the legislation there is now no set ‘retirement age’ for most employment groups, meaning that employees can retire when they wish. It is important that managers do not use ‘capability’ as grounds for dismissing older workers, and if performance is an issue, it must not be connected to the person’s age.   Managers should consider the full range of remedial options and reasonable adjustments which may include reduced or flexible working.

E. Capability Procedures and Religion

Employees are protected from discrimination because they have a religion or a religious or philosophical belief.  This also includes a lack of religion or belief.  An employee may observe particular practices connected to their religion or belief. 

For example, some followers of a religion may fast which could reduce their job performance during this period. Managers are advised to make allowances where the employee has advised of their religious belief and there is no justification for not accommodating the employee’s needs. Criticising the employee’s productivity or performance at this time could be discriminatory. 

F. Capability Procedures and Race

With an increasingly diverse workforce, staff of different nationalities, ethnic or national origins will be employed. As a result, there may be employees for whom English is not their first language.

Therefore, managers should consider assistance to those whose English skills are limited and find difficulty in communicating in English in an emotive situation such as a capability hearing. For example, an employer may wish to provide an interpreter.

Last updated: December 2019 – Amendment No 15-029

 

[1] Such as Civil Aviation Authority, Health & Care Professions Council, Royal College of Veterinary Surgeons.

[2] Health being a mental or physical condition or impairment

[3] Welfare support includes contact officer, union, OHR, staff welfare

[4] Some individuals may require assistance in accessing and completing documents