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This procedure is designed to provide a constructive framework within which to help members of staff who are failing to achieve a satisfactory level of performance at work to fulfill the duties of the role to the required standard. It is the University’s intention wherever possible to be corrective rather than punitive.
This procedure does not apply to:
For staff reporting within the academic school/faculty structure, references to Appropriate Manager shall usually be construed as referring to either the Head of School or School/Faculty Manager, but may in appropriate cases refer to a head of department or head of discipline. In support process areas, references to Appropriate Manager shall usually refer to either the Divisional Head, or in larger areas, other postholders within the line management structure as appropriate.
In this procedure, unless the context indicates otherwise, references to University postholders and Appropriate Managers shall be construed to refer either to the postholder or the Appropriate Manager or to an appropriate member of staff nominated by him or her to act with full authority on his or her behalf.
Throughout any proceedings taken under this procedure, the University shall seek to ensure that a high standard of confidentiality is maintained, before and after the hearing as well as in relation to the hearing itself. Care shall be taken not to undermine the position of the member of staff concerned in relation to his or her colleagues. Investigations shall be undertaken with discretion. Where necessary to ensure confidentiality, administrative support shall be provided by Personnel Services. Wherever practicable, hearings shall be held away from the member of staff’s normal place of work. None of this shall preclude information about the outcome being given to any person where this is appropriate.
A member of staff who is subject to proceedings under this ordinance has the right to attend hearings and to be represented by an adviser, friend, trade union or other representative. If the member of staff is for good reason unable to attend a formal hearing, the hearing shall be adjourned to a suitable alternative date within a reasonable time. However if there are reasonable grounds to believe that the member of staff is refusing or failing to attend a hearing without good cause, the member of staff will be informed that a further hearing is being arranged. On that further occasion the University may proceed in the absence of the member of staff, unless satisfied that there are good grounds for his or her non-attendance. Any submission concerning non-attendance made by the member of staff in writing, or by his or her representative in person or in writing, shall be considered before any decision is taken to hear the matter in his or her absence. If the hearing proceeds in the member of staff’s absence, any submission made about the capability and performance by the member of staff in writing, or by his or her representative in person or in writing, shall be considered at the hearing.
This procedure is not intended to replace normal management processes as the way in which staff performance is supported and monitored. Issues of unsatisfactory performance will normally be dealt with through management and staff review, and this capability and performance procedure will be used only where the failure to reach a satisfactory level of performance is significant or persistent (issues of progression and salary increments are addressed elsewhere).
When the performance of a member of staff is causing such concern, the normal management and staff review processes having failed to secure the required improvement, the Appropriate Manager’s 1
next step shall be to discuss the problem with the member of staff informally under this procedure. Such discussions shall identify clearly the problem and consider its causes and possible solutions. The Appropriate Manager shall ensure that the member of staff is aware of the standards expected and shall consider whether any further support or action might be appropriate. Further action might include training, increased supervision, counseling, mentoring or changed working arrangements. Where the individual considers there are issues of discrimination, consideration shall be given to providing relevant supportive mentoring, for example by offering a female member of staff an appropriate female mentor.
Where there is continuing concern after such informal discussion, the Appropriate Manager shall make a brief note of the discussion and confirm the main points in writing to the member of staff, including future expectations, timescales within which improvement is expected, and the potential consequences of a failure to improve, namely the possibility of formal action under Stage 1 of this procedure.
Where a member of staff’s health appears to be a contributory cause, the Appropriate Manager shall consider whether it would be appropriate to seek a medical opinion, in which case advice shall be sought from a personnel manager. Where an underlying medical condition is established as a reason for performance problems, it will normally be appropriate to take the matter forward under the Ill-Health Procedure.
Where informal discussions have not led to improved performance, the Appropriate Manager, after consultation with a personnel manager, may consider taking formal action under Stage 1 of this procedure. Before any decision is taken to proceed with formal action under Stage 1, the Appropriate Manager shall where appropriate gather such further information as may be required, with advice from a personnel manager.
The Appropriate Manager shall inform the member of staff that an investigation is taking place and shall normally interview the member of staff. Written statements may be obtained. If the Appropriate Manager decides that it is appropriate to consider giving the member of staff a Stage 1 notification of concern, the Appropriate Manager shall arrange a hearing. The Appropriate Manager shall inform the member of staff in writing at least seven working days in advance that there is to be a hearing. The letter shall include:
At the hearing the Appropriate Manager shall interview the member of staff, who shall be given the opportunity to respond. A personnel manager shall normally attend the hearing. The Appropriate Manager may, for good reason, request another member of staff to attend the hearing. Individuals may attend to give relevant evidence. The Appropriate Manager shall ensure that a note is taken of the hearing. The note shall normally be taken by a personnel manager.
If, having considered the evidence, the Appropriate Manager is satisfied that a Stage 1 notification of concern is appropriate, the Appropriate Manager shall consider representations from the member of staff on the period during which improvement in performance is to be achieved, and the period, which may be longer, during which the notification of concern shall remain in force. The latter shall not normally be more than two years.
The Appropriate Manager shall inform the member of staff that a letter shall be sent within seven working days, giving a Stage 1 notification of concern under the procedure, and stating that the notification of concern will be in force for a given period from the date of the letter, after which it will be spent. The Appropriate Manager shall enclose a copy of the note of hearing, and shall set out in the letter:
The member of staff shall be shown any report on his or her performance prepared during the period in which the Stage 1 notification of concern is current.
If, while the Stage 1 notification of concern is still in force, the required improvements under it have been made and sustained to the satisfaction of the Appropriate Manager, he or she may decide that the notification of concern should be treated as spent and shall confirm this decision to the member of staff in writing.
If, having considered the evidence, the Appropriate Manager is satisfied that a Stage 1 notification of concern is not appropriate, he or she shall so inform the member of staff and shall confirm this by letter within seven working days.
If the member of staff has not met the required improvements within the timescale set out under the Stage 1 notification of concern, or where performance deteriorates while the notification of concern is in force, the Appropriate Manager, after consultation with a personnel manager, may consider taking formal action under Stage 2 of this procedure. Before any decision is taken to proceed with formal action under Stage 2, the Appropriate Manager shall where appropriate gather such further information as may be required, with advice from a personnel manager. The Appropriate Manager shall inform the member of staff that an investigation is taking place and shall normally interview the member of staff. Written statements may be obtained.
If the Appropriate Manager decides that it is appropriate to consider giving the member of staff a Stage 2 warning, the Appropriate Manager shall arrange a hearing. The Appropriate Manager shall inform the member of staff in writing at least seven working days in advance that there is to be a hearing. The letter shall include:
At the hearing the Appropriate Manager shall interview the member of staff, who shall be given the opportunity to respond. A personnel manager shall normally attend the hearing. The Appropriate Manager may, for good reason, request another member of staff to attend the hearing. Individuals may attend to give relevant evidence. The Appropriate Manager shall ensure that a note is taken of the hearing. The note shall normally be taken by a personnel manager.
If, having considered the evidence, the Appropriate Manager is satisfied that a Stage 2 warning is appropriate, the Appropriate Manager shall consider representations from the member of staff on the period during which improvement in performance is to be achieved, and the period, which may be longer, during which the warning shall remain in force. The latter shall not normally be more than two years.
The Appropriate Manager shall inform the member of staff that a letter will be sent within seven working days, giving a Stage 2 warning under the procedure, and that the warning will be in force for a given period from the date of the letter, after which it will be spent. The Appropriate Manager shall enclose a copy of the note of hearing, and shall set out in the letter:
The member of staff shall be shown any report on his or her performance prepared during the period in which the Stage 2 warning is current.
If, while the Stage 2 warning is still in force, the required improvements under it have been made and sustained to the satisfaction of the Appropriate Manager, he or she may decide that the warning should be treated as spent and shall confirm this decision to the member of staff in writing.
If, having considered the evidence, the Appropriate Manager is satisfied that a Stage 2 warning is not appropriate, he or she shall so inform the member of staff and shall confirm this by letter within seven working days.
Alternatively the Appropriate Manager may instead extend a Stage 1 notification of concern.
If the member of staff does not meet the required improvements within the timescale set out under the Stage 2 warning, or where performance deteriorates while the Stage 2 warning is in force, the Appropriate Manager, after consultation with the Personnel and Staff Development Director, may set out a case to be heard by a panel.
In the case of a member of staff to whom Statute 32 applies, the Vice-Chancellor shall appoint to the panel three members with no prior involvement in the case, including a lay member of Council in the chair, and also including a member of staff of the academic staff appointed by Senate. Where the case concerns a member of the clinical academic staff, who is required to engage in clinical work or activities and for that purpose to be registered with the General Medical or Dental Council or similar body and/or to have an honorary or substantive contract or status with a National Health Service trust or similar body, then the panel may include, in addition to its other members, an appropriate representative of the National Health Service, appointed by the Chief Executive of the Avon, Gloucestershire and Wiltshire Strategic Area Health Authority or successor body.
In the case of a member of staff to whom Statute 32 does not apply, the dean or head of division shall appoint to the panel three members who have no prior involvement in the case, nominating one of them as Chair.
The Personnel and Staff Development Director shall act as secretary to the panel, to give advice and to assist the panel, and shall arrange for a note of the proceedings to be taken. The panel may seek independent legal advice.
The Personnel and Staff Development Director shall appoint a member of the University staff or a lawyer to present the case against the member of staff. The Personnel and Staff Development Director shall ask the case presenter to set out the case in writing and this shall be sent to the member of staff at least seven working days before the hearing. Copies of any written statements shall be sent to the member of staff at least seven working days before the hearing.
Subject to the provisions of this ordinance and representations made by the member of staff, the order of proceedings at the hearing shall be at the discretion of the panel2.
The panel shall rely only on written or oral evidence presented at the hearing. Normally evidence shall be given in person, by individuals who may be called by the case presenter, the member of staff or the panel. All such persons may be questioned by the case presenter, the member of staff or his or her representative, and members of the panel. The panel may accept a written statement in evidence where the member of staff agrees that the author of the statement need not attend, or where it is impracticable for him or her to attend, or where in the opinion of the panel it is for some other reason in the interests of justice to do so. The panel may ask for additional enquiries to be undertaken, and may call for additional persons to attend.
While every effort will be made to ensure that the member of staff is not rushed in the presentation of his or her case, the panel may impose reasonable time limits on oral addresses and submissions. The panel shall refuse to admit evidence that is, in its opinion, irrelevant to the issues raised. The panel shall have power to adjourn a hearing to another date. The panel shall ensure that the proceedings are dealt with expeditiously. It may set time limits for each stage of the proceedings, and may dismiss the case if there are undue delays by the University in taking the matter forward.
The panel shall find against a member of staff only if, on the evidence before it, it is satisfied that the case is proved. Normally a unanimous verdict will be expected, but if, exceptionally, the members of the panel cannot agree, the verdict of the panel shall be that of the majority of its members. The panel shall give a reasoned decision in writing, which shall be sent to the member of staff.
The Vice-Chancellor, having consulted the Chair of the Personnel and Staff Development Committee, has the power for good reason to suspend the activity of the panel, to stop the proceedings against the member of staff, or to require the proceedings or any stage of the proceedings to be concluded by a given date.
Sanctions normally open to the panel are as follows:
If, having considered the evidence, the panel is satisfied that no action is appropriate, it shall so inform the member of staff and shall confirm this by letter.
When formal proceedings under this procedure are contemplated against an accredited representative of a trade union recognised by the University, the Personnel and Staff Development Director shall inform the Branch Chair, Secretary or full-time official of the Union of the circumstances before the hearing.
Where members of staff are involved in teaching or research, whether or not they are covered by Statute 32, the University shall safeguard their freedom within the law to question and test received wisdom and to put forward new ideas and controversial or unpopular opinions, without suffering any detriment.
Where a member of staff transfers to a new post within the University, any current notification of concern or warning will remain in force and the head of the school/division to which the member of staff is transferring will have been advised of this. Appropriate Managers shall refer to the University’s Staff Handbook or Recruitment Guide for advice on references.
A notification of concern or warning that is spent shall normally be disregarded if action is taken under this procedure. After a notification of concern or warning is spent, any notes and correspondence relating to it shall be destroyed, except for one copy which shall be held on the central personnel file, clearly marked as spent.
Action may be taken under this procedure against a member of the clinical academic staff, whether on a substantive or an honorary contract, who is required to engage in clinical work or activities, and for that purpose to be registered with the General Medical or Dental Council or similar body and/or to have an honorary or substantive contract or status with an NHS trust or similar body, in respect of performance issues arising in connection with his or her NHS work or activities, as if the work or activities were performed in and for the University.
If a case is in progress under this ordinance and it emerges that the member of staff’s performance may have been wholly or partly attributable either to a medical condition or is considered to include or amount to misconduct, the case shall usually be transferred to be dealt with under another appropriate procedure. Where it is unclear which procedure is the most appropriate, the University shall decide which procedure to adopt, subject to representations made by the member of staff or his or her representative.
The University may, but is not obliged to, defer action under this procedure pending the outcome of relevant action taken outside the University, for example against a member of the clinical academic staff who is required to engage in clinical work or activities, and for that purpose to be registered with the General Medical or Dental Council or similar body and/or to have an honorary or substantive contract or status with an NHS trust or similar body, in respect of performance issues arising in connection with his or her clinical work or activities.
All appeals must be made in writing to the University Secretary within twenty working days of the date when the letter confirming the decision appealed against was sent. The appeal letter shall set out clearly the general grounds on which the appeal is based. A member of staff shall not normally be permitted to raise grounds at the appeal hearing if these were not raised in the original written appeal submission. An appeal may be made under this procedure after a member of staff has left the University following dismissal, however appeal proceedings may be suspended pending the outcome of an employment tribunal application.
Appeals under this procedure against notifications of concern and warnings shall be heard by the dean of faculty or Registrar, unless the original decision was taken by the dean or Registrar, in which case the appeal shall be heard by a pro vice-chancellor. Where the original decision was taken by a pro vice-chancellor or the Vice-Chancellor, the appeal shall be heard by a senior member of staff appointed by the Vice-Chancellor. The decision shall be final.
The person hearing the appeal shall be advised by the Personnel and Staff Development Director. The member of staff may present his or her case in person or in writing, and may be represented by an adviser, friend, trade union or other representative. There shall be no entitlement to a rehearing of the case. Grounds for appeal include (1) new evidence which could not reasonably have been presented at the hearing at which the original decision was taken, (2) that the original hearing was not conducted fairly, or (3) that the original decision was unreasonable in the light of the findings of fact. In the first case, the person hearing the appeal may remit the matter back for reconsideration. In the second and third cases, the person hearing the appeal shall overturn the original decision if he or she considers it just to do so.
Appeals against a decision other than a notification of concern or warning shall take the form of a review. There shall be no entitlement to a rehearing of the case and witnesses may be called only with the appeal Committee’s permission. Grounds for appeal include (1) new evidence which could not reasonably have been presented at the hearing at which the original decision was taken, (2) that the original hearing was not conducted fairly, or (3) that the original decision was unreasonable in the light of the findings of fact. The committee shall overturn the original decision if it considers it just to do so.
Council shall appoint a committee of three to consider the appeal, none of whom shall have had any prior involvement in the case. The committee shall include a lay member of Council as Chair, and, in the case of members of staff to whom Statute 32 applies, a member of the academic staff appointed by Senate. In addition in the case of members of staff to whom Statute 32 applies, the member of staff may request that an independent person from outside the University with relevant experience should sit as a fourth member of the committee. Where the appeal is made by a member of the clinical academic staff, who is required to engage in clinical work or activities and for that purpose to be registered with the General Medical or Dental Council or similar body and/or to have an honorary or substantive contract or status with a National Health Service trust or similar body, then the committee may include, in addition to its other members, an appropriate representative of the National Health Service, appointed by the Chief Executive of the Avon, Gloucestershire and Wiltshire Strategic Area Health Authority or successor body.
The University Secretary shall act as secretary to the appeal committee. The procedure shall be determined by the committee3. The member of staff may present the appeal in person, attend hearings and be represented by an adviser, friend, trade union or other representative. The University may be represented by a member of staff or lawyer. The committee may adjourn hearings, set time limits for stages of the proceedings, correct accidental errors and dismiss an appeal if there are undue delays in taking the matter forward. Every effort will be made to deal with the matter expeditiously. The committee shall give a reasoned decision in writing, which shall be sent to the member of staff and to Council.
Any dismissal under this procedure shall remain in force pending the outcome of an appeal. If the decision to dismiss is overturned, continuity of employment shall be restored.
1 Throughout this procedure (subject to Ordinance 33 on removal from an additional post), if the Head of School/Divisional Head performance is causing concern, the matter will be dealt with by the dean or Registrar, as appropriate; if a dean’s performance is causing concern, the matter will be dealt with by the appropriate provice- chancellor; and if the Registrar’s or a pro-vice-chancellor’s performance is causing concern, the matter will be dealt with by the Vice-Chancellor.
2 Personnel will issue guidelines on procedure from time to time.
3 Guidelines on procedure shall be issued from time to time.
Approved by Council 2 July 2010
| Action | Taken by post holder (or nominee) | Consults | Possible action before hearing | Notice (working days) | Present at hearing (or nominee) | Action which may follow hearing | Time for appeal (working days) |
|---|---|---|---|---|---|---|---|
| Informal discussion | Appropriate Manager | Advice, training, transfer | |||||
| Stage 1 Notification of concern | Appropriate Manager | Personnel manager | Gather information | 7 | Personnel manager | Stage 1 Notification of concern | 20 |
| Stage 2 Warning | Appropriate Manager | Personnel manager | Gather information | 7 | Personnel manager | Stage 2 Warning | 20 |
| Stage 3 Panel | Panel of 3 | Personnel and Staff Development Director | Gather information | 7 | Personnel and Staff Development Director | Action including dismissal | 20 |
Updated 16 September 2010 by Human Resources
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