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Capability Procedure 1 Revised March 2001 Human Resources Wiltshire Police

CAPABILITY PROCEDURE

1. Introduction

1. Wiltshire Police Authority is committed to being a fair and reasonable employer and takes this commitment seriously. It recognises that an effective capability procedure is essential to help and encourage all employees to achieve and maintain high standards of job performance. The aim of this procedure is to provide a fair, effective and open method of assisting employees to improve their performance to reach an acceptable level.

2. Careful recruitment, selection, explanation of the standards required and appropriate training will

minimise the risk of poor performance. There will however be occasions when an employee’s ability to undertake their job does not meet the required standards. In such situations it may be necessary to utilise this procedure to assist the employee. In the first instance this will be to achieve set standards but if this fails then to consider redeployment or dismissal.

3. The Capability Procedure should not be confused with the Disciplinary Procedure; the two are entirely

separate. However, in some circumstances there may be a need to implement both concurrently. 4. This procedure applies to all Wiltshire Constabulary Support Staff who have completed their period of

probation. Staff who are serving a probationary period in a new role or as a new joiner, will be dealt with in accordance with Section A1 of the Support Staff Handbook.

5. Separate Guidance Notes for the operation of this policy have been written for use by all interested

parties as capability matters/issues arise. These are available from the Human Resources Department at Headquarters.

2. Purpose and Scope of the Procedure

1. The purpose of Wiltshire Constabulary’s capability procedures is to help all Support Staff to achieve and maintain satisfactory levels of job performance. This procedure is not viewed solely as a means of imposing sanctions but rather as a means of encouraging improvement in performance and assisting employees who are falling short of acceptable standards of competence. These rules do not form part of the Statement of Particulars in the Contract of Employment but fall under Part B of the Support Staff Handbook and have been subject to consultation with Unison.

2. The Capability Procedure will provide managers with equitable and consistent methods of dealing with

individual members of staff who are exhibiting unsatisfactory work performance. 3. It will provide a means for staff to be advised formally of the effects and the potential consequences for

their employment of unsatisfactory work performance. It will also ensure that staff are provided with relevant information, are given the opportunity to express their view of events, and are offered practical assistance appropriate to the circumstances.

4. The purpose of the procedure is to provide the machinery for dealing with capability matters concerning

all Support Staff employees of the Wiltshire Police Authority. The Constabulary accepts that where an employee is not capable of performing the duties required under the Contract of Employment, the application of the disciplinary procedure is inappropriate.

5. Wiltshire Constabulary accepts that it has an obligation to ensure, as far as reasonably practicable, that

all Support Staff are acquainted with the rules applying to their particular behaviour. Support Staff too have a responsibility to familiarise themselves with the general rules and procedures referred to in their terms and conditions of service and the specific working rules related to their particular areas of work, together with such amendments as may be made and drawn to their attention from time to time.

6. These procedures do not apply where termination of employment is

i. as the result of redundancy ii. the natural termination of a temporary employee’s contract of employment iii. where an employee is still within their probationary period iv. where an employee resigns or termination occurs by mutual consent.


3. Principles of the Procedure

1. An employee should be advised that they are entitled at all stages of the procedure, both informal and formal, to be accompanied by a colleague or a Unison representative of their choosing, as the union body recognised for negotiation and consultation purposes by the Police Authority. This individual must be employed by the Wiltshire Police Authority but in exceptional circumstances a regional representative may be allowed.

2. The employee must be told why management are dissatisfied with their level of performance in their role.

No formal action under this procedure will be taken against an employee until appropriate informal counselling procedures have been pursued.

3. At the commencement of the procedure the employee will be advised in writing of the nature of their poor

performance and thereafter is to be kept informed at all stages of the procedure. 4. No decision regarding the action to be taken will be made until the employee has had an opportunity to

state their case. 5. Where an employee is required to attend a capability hearing, there will be advance notice to the

employee of the grounds for that hearing and the information that will be considered. 6. An employee will not be dismissed for an initial matter of capability except in cases of gross incapability

where a lesser penalty would be inappropriate (See Section 9.7.9). 7. An employee has a right of appeal against any decision to impose a formal sanction or dismissal. (See

Section 9.9) 8. There may be occasions where consideration of a matter through this procedure may result in a decision

where it is deemed more appropriate to consider the matter under the Disciplinary Procedure. Both procedures are regarded as interchangeable within the formal and informal stages and this should be discussed with the Human Resources Department.

9. Case Law distinguishes between what is seen to be

a. sheer incapability due to inability to function i.e. not the employee’s fault and b. failure to exercise fully such talent as the employee has which can relate to failure to reach

standards through carelessness, negligence, idleness or conscious acts. In cases where (b) applies, it is more likely that these will be treated as misconduct and therefore under the Disciplinary Procedure.

10. Almost every case is different, and so it is impossible to provide a comprehensive list of areas included

within the term capability. In general terms, however, it is possible to identify two main categories.

i. Ability

lack of qualification, skill or aptitude for a particular job,

a change in the nature of the job making it more complex or heavier in terms of workload following any appropriate training

ii. Sickness

a change in the employee e.g. unable to fulfil the role due to disability through an accident

ill health (mental or physical) leading to long term absence

level of attendance insufficient to fulfil the role 11. Any capability issue relating to ill health either physical, or mental, should be dealt with in accordance

with the Sickness Management Procedure and Section 9.10 of these procedures.


12. All cases of capability action under these procedures will be recorded and held by the Human Resources Department. The full case papers will be held in Central Registry and certain papers will be held on an employee’s personal file.

13. Although normal standards apply to their conduct and job performance as employees, no formal action

will be taken against a Unison representative until the circumstances have been discussed with a full time official of Unison. No action will be taken against any employee in respect of alleged incapability which arises from trade union duties or activities until the matter has been fully discussed with the Head of Human Resources.

14. Amendments to this procedure, except for those that arise consequentially from legislation or case law

shall be the subject of consultation with Unison. 15. Any employee who becomes the subject of a capability process will be offered the services of the

Occupational Health Department and automatic referral by their line manager. 16. Nothing in this procedure prevents a line manager or a Divisional/Departmental Commander from

delegating particular tasks e.g. evidence gathering to an Investigating Officer in appropriate circumstances.

17. It is accepted that dealing with under performance by more senior managers creates specific issues that

will be resolved in accordance with the principles of this procedure.

4. Informal Counselling

1. The day to day supervision of staff is part of the normal management process and is outside the procedure for dealing formally with unsatisfactory job performance, sickness absence or health problems. There is likely to be less recourse to the formal procedure if shortcomings in an employee’s performance and conduct are brought to their attention at the earliest possible opportunity by the line manager in the course of that person’s normal duties. Where it becomes apparent to the Supervisor that the employee’s capability to perform the duties required is in question then this should be dealt with initially by informal counselling.

2. Unsatisfactory work performance may become apparent in a number of ways. These may include:

Poor standards of work e.g. frequent mistakes, not following the job through, unable to cope with instructions given, failing to complete work on time

Via the Performance Development Review system where an individual consistently fails to meet targets over a longer timescale

Lack of apparent skill in tasks and method of work required

Long term inability to change working practices, develop new skills or respond to changing work needs.

Where their work is having an adverse affect on other employees whose work is dependent on the incapable employee Any concerns should be dealt with by the Supervisor as soon as possible and not ‘stored’ for the annual review. Where considered necessary, the advice of the Human Resources Department should be sought.

3. Employees must be given a clear understanding of the standard of performance required of them. They

should be given the opportunity to outline issues that may have adversely impacted on their performance. They should be given the necessary support and guidance to achieve good performance.

4. Sometimes standards and expectations are changed because of new requirements. Where this occurs it

is essential to notify employees of the new standards, which must be reasonable, and new expectations. Any appropriate training and/or closer support will be provided for the introduction of new practices.

5. Unless a matter is serious enough to warrant it, informal counselling is seen as a more appropriate

response initially rather than formal capability action. A counselling interview should be initiated by the Supervisor. It should be recorded, with the emphasis on finding ways in which the employee can remedy any shortcomings identified and determine what support is necessary in the short or longer term.


6. Counselling is outside of the formal capability procedure but may be referred to at a later date. The

counselling interview should not turn into a formal capability interview as this would deny the employee certain rights. If during the interview, the matter appears more serious than originally thought, then the counselling interview should be terminated and the employee informed that the matter will be handled under the formal capability procedure. If it transpires that the failure to meet standards has arisen from a conscious act on the part of the employee, then action under the disciplinary procedure may be considered.

7. Where informal counselling has been ineffective over a period of time, normally 6 to 8 weeks, the matter

should be referred to the Manager and the Human Resources Department consulted.

5. Formal Capability Process

1. The Manager will invite the employee to a formal capability interview. However, where deemed appropriate, the Manager will appoint an independent Investigating Officer to examine the matters of under performance and actions taken in the process to date. In these cases the formal capability interview will be delayed pending receipt of the Investigating Officer’s report.

2. The employee should be informed in writing of the reason for the formal capability interview and of their

right to be accompanied to this interview by a colleague or a Unison representative and given adequate time to obtain such representation. A member of the Human Resources Department may also be requested to attend this interview should the Manager so wish.

3. At this interview the difficulties caused by poor work performance should be outlined and the employee

given every opportunity and assistance to identify any problems which may be contributing to their continued poor performance. They should be reminded of the earlier informal discussions and the steps taken to encourage improvement. They should be told precisely where their unacceptable performance exists.

4. At this interview clear objectives will once again be set for the employee. The objectives must be

reasonable and achievable within an appropriate review period and must be appropriate to the issues raised. The employee will be advised of the required objectives and the fact that continued poor work performance may lead to termination of their employment.

5. During this review period constructive feedback will continue to be given to the employee to encourage

and support the employee in their efforts to improve. The employee will also be advised if their performance is not improving to the required standard.

6. It should be made clear to the employee that, at the end of this review period, a further formal interview

will be held to consider whether satisfactory improvement had been made in the areas of concern. The outcome of this further interview may be: i. Acknowledgement that the required standards have been met if that is the situation OR ii. A further review period OR iii. Referral to the next stage in the process i.e. a capability hearing.

7. At the conclusion of each formal interview, a written record of the substance of the interview will be made

and a copy forwarded to the member of staff, their representative and their Divisional/Departmental Commander. This will not be a verbatim record of the interview. Rather it will be a note summarising the substance of the interview including any comments made by the employee regarding the issues raised. The employee will be provided with the above information in writing no later than 5 working days after the interview.

6. Capability Hearing/Process

1. If at the end of the second or subsequent formal capability interview review period, the situation remains unsatisfactory, the work performance has still not improved to an acceptable level or the objectives have not been met, the Divisional/Departmental Commander may hold a capability hearing. A member of the Human Resources Department will also be present at the Hearing as Technical Adviser to the Chair of the Hearing.


2. Should it become necessary to arrange a capability hearing and a Manager is required to take witness

statements in readiness for the Hearing, then any witness statements should be signed. Statements should make reference to the date/time and place of the incidents(s) and performance concerned, the witness’s opportunity and ability to observe any incident or poor performance clearly and with accuracy and why the witness was present or has the knowledge that he/she has (e.g. why these events are memorable). The Manager should be aware of exploring the relationship between the witness and the individual concerned that may impact on the reliability of their evidence.

3. Nothing in this policy prevents a Manager or Divisional/Departmental Commander from delegating

particular tasks e.g. evidence gathering to an Investigating Officer in appropriate circumstances. 4. When a witness is reluctant to give evidence and provide a statement, it should be impressed upon them

their duty to co-operate with their employer in the investigation of such matters and encourage them to take part. They should be questioned as to the reason for their reluctance – i.e. is it through embarrassment or a genuine fear of the employee being investigated. If a witness proves to be uncooperative then the evidence they can provide should be recorded and endorsed that they are unwilling to provide a formal statement and the reasons they give for this.

5. When taking statements during the course of an enquiry, the Manager must ensure that all information is

followed up, by second interviews with witnesses if necessary, and that all possible avenues or gaps are explored in order to provide as detailed a report as is necessary for the Divisional/Departmental Commander to consider at the capability hearing.

6. An employee will normally be given 21 calendar days notice in writing of the date, time and place of the

Capability Hearing, unless an earlier date is mutually agreed. This letter should also inform the employee of the nature and details of the alleged incapability and of their right to be accompanied at the hearing by a colleague or a member of Unison (See Para 9.3.2). There is no right to have a legally qualified representative present

7. This notice will also include the right to call witnesses and submit written statements or representations,

the name of the person who will chair the Hearing and copies of any documentation which is to be considered at the Hearing as well as a copy of the Capability Procedure.

8. Not later than 5 working days before the Hearing the employee shall supply, if not already known, the

name and status of their representative if any, and submit any written statements or representation they wish to be considered at the Hearing, either direct or through a representative. Failure to do so may result in such statements or representations not being considered at the Hearing.

9. Witnesses may be called by either party where this is considered necessary by the Chair of the Hearing.

A witness statement will be accepted as evidence of what the witness can say. Where the Chair of the Hearing agrees to witnesses being called in addition to their witness statements being available, the number of witnesses called may be limited to that necessary for a fair hearing of the case. The employee or their representative has a right to question these witnesses. The Human Resources Department will assist in the arrangement of witness attendance for both parties.

10. In the event of the employee not attending the Hearing as arranged, the Hearing may be adjourned to a

later date at the discretion of the Chair of the Hearing. He/she will take into consideration the reasons for non-attendance in making their decision. A second failure to attend is likely to result in the case being heard in the employee’s absence.

11. The employee will normally be informed of the Chair’s decision at the end of the actual hearing. In some

circumstances the Chair may decide to adjourn to obtain further legal advice and recall the parties no later than 3 working days after the hearing to give their decision. Either way, the decision will be confirmed in writing to the employee within 5 days of the Chair’s decision being given. This letter will indicate any rights of appeal.


7. Determining Capability Outcomes

1. Case Unfounded

Having heard the evidence, if the Chair of the Hearing considers that the case against the employee is unfounded, the employee and their representative will be informed of this at the Hearing and it will be confirmed in writing within 5 working days of the actual Hearing. All references to the matter will be expunged from the employee’s personal file for capability purposes.

2. Formal Oral Warning

Where the Chair of the Hearing determines that the work performance of an employee is deemed to be unsatisfactory on the basis of the evidence presented at the Hearing, the employee may be issued with a formal oral warning which will be recorded and will remain on their personal file for a period of six months. Subject to satisfactory performance, this warning will then be treated as spent. The employee will be informed that further failure to conform to the required standards could lead to further formal action under this Procedure. Details of the employee’s poor performance/incapability and the formal oral warning will be placed on the employee’s personal file and a copy supplied to the individual.

3. Written Warning

Where the Chair of the Hearing determines that the capability issue is of a more serious nature or if, following a formal oral warning, a further capability issue occurs while a file note remains on record, he/she may issue a written warning. This warning will set out the nature of the under performance and outline the possibility of dismissal if no improvement takes place. This will require an improvement in the employee’s performance within a stipulated time period, failing which further formal action will be taken. Whilst 12 months is the normal time period for a written warning to remain live on the employee’s personal file, the Chair of the Hearing has the discretion to vary this time period dependent on the circumstances of the case. Therefore the warning may remain live on the employee’s personal file for a period of between 6 to 18 months but subject to satisfactory conduct or performance this warning will be treated as spent once this time period has elapsed.

4. Final Written Warning

Where the Chair of the Hearing determines that the capability issue is very serious but does not amount to gross incapability or in the event of further poor performance following a written warning, or the performance of an employee is so poor that it cannot be tolerated further, a final written warning may be issued. This warning will outline the reason for this level of warning and that an immediate improvement is required in their performance and that during the warning period, any further serious matters of poor performance may result in dismissal. This warning will remain live on the employee’s personal file for a period of 24 months but, subject to satisfactory performance, will then be treated as spent once this time period has elapsed. However, having been issued with a final written warning, any repeat of "similar" poor performance during the course of the employee’s employment may result in their dismissal. If, on issuing a final written warning, the employee refuses to accept the requirement to improve their performance, the employee may be dismissed at this point. 5. When the warnings outlined above have expired in accordance with the time limits set out in 9.7.2, 9.7.3

and 9.7.4 and there have been no similar or related incidents of poor performance during the life of the warning, the warning will be considered spent and all relevant papers removed from the employee’s personal file, except for a cross reference to the capability records. The employee will be notified that this has occurred. If there are further instances of poor performance during the life of the warning then a further capability hearing will consider further formal action in accordance with this procedure.

6. Dismissal (with notice)

If the Chair of the Hearing determines that the performance of the individual is so poor/serious as to warrant dismissal or, following a previous written warning there is no satisfactory improvement in the employee’s performance, or previous warnings issued in accordance with these procedures have been ineffective, he/she may take the decision to dismiss the employee. The employee will be informed of this decision and a report with supporting evidence from the process and the Hearing will be forwarded to the Assistant Chief Constable to consider the course of action recommended by the Chair of the Hearing following a capability hearing. The employee will be informed by the Assistant Chief Constable in writing as to whether he/she upholds the decision to dismiss and should receive this information within 5 working days of the Hearing.


Such a dismissal will normally be with notice or pay in lieu of notice, in accordance with contractual or legal requirements. Dismissal is not suspended pending the outcome of any appeal. 7. The Chair of the Hearing may also consider the possibility of suitable alternative employment as an

alternative to dismissal having due regard to the skills and attributes of the employee and to the vacancies that exist at that time. The alternative employment offered may not be at the same grade, particularly where capability to perform at that level was an issue. It must be emphasised that Wiltshire Constabulary is under no obligation to create a post. If the employee at this stage refuses a reasonable alternative offer then dismissal will take effect.

8. Summary Dismissal (dismissal without notice)

When an employee’s performance is regarded as gross incapability, it may be inappropriate to take them through an extended staged procedure. An employee may be summarily dismissed for serious matters of under performance but not normally for a first instance, except where the first instance is deemed to be Gross Incapability. In such cases, summary dismissal without notice or pay in lieu of notice may be appropriate. This may occur where as a result of initial matters being raised, the circumstances indicate to the Divisional/Departmental Commander gross incapability (see 9.7.9) in which the fundamental trust and confidence in an employee is seriously undermined.In these instances, following a hearing, a Divisional/Departmental Commander determines that an employee should be dismissed, a written report with supporting evidence from the investigation will be forwarded to the Assistant Chief Constable. He/She will normally consider the case within 5 working days of receipt of such paperwork and confirm or otherwise any action to be taken in writing to the employee. They may still appeal this decision (See Section 9.9).

9. Gross Incapability

Gross incapability is regarded as performance of such a nature that it fundamentally breaches the contract between the employee and employer and justifies management no longer accepting the continued presence of the employee at work. Examples of gross incapability may include:

Where the health and safety of colleagues is placed in serious jeopardy

Where there are serious consequences for the department or organisation

Where there are serious consequences for the service being provided either internally or externally This list is not exhaustive, but it is intended to give an indication of the type of offence which would be regarded as gross incapability and render an employee liable to dismissal. 10. Wiltshire Constabulary reserves the right to instigate the above procedure at any stage that it

feels to be appropriate and/or if necessary, to omit any particular stage, depending on the severity of the capability matter or failure to perform.

8. Suspension

1. Every Manager has the authority and responsibility to send an employee home if they believe the employee to be a risk to themselves and/or others because of their behaviour or mental/physical state. Such action is NOT regarded as suspension and it should be made clear to the employee that this is a formal request to leave the work place. In such cases the Manager should approach an authorised senior manager (see Para. 9.6.2) to consider whether formal suspension is appropriate. If the employee is not to be suspended then they should be allowed to return to duty as normal as soon as they are able/fit to do so.

2. If the employee is to be suspended they will be informed of this decision, normally in the presence of a

colleague or Unison representative and confirmation of the reasons for suspension will be provided in writing as soon as is reasonably practicable.

3. A decision to suspend an employee may only be taken by a police officer of Superintendentrank of a member of Support Staff of Grade W12 or above. The suspension will normally last for the minimum amount of time necessary including any Hearing. If suspended, an employee’s contract of employment will be deemed to continue together with all their rights, including full contractual pay.Dependent on the circumstances the employee may be transferred to other employment within the Constabulary as an alternative to suspension and will be expected to comply with this action.


4. Suspension is NOT a formal sanction and should not be regarded as in any way pre-judging the outcome of the capability process. It is a step that may be taken in one or more of the following circumstances:

i. Whilst an enquiry is made into matters of a serious nature, where the possibility of dismissal may

arise ii. When the performance and behaviour of the employee requires investigation and is of such a

serious nature that it is undesirable for the employee to remain on duty. iii. When the behaviour or mental/physical state of the employee is such that he or she is a danger

to himself or herself or others iv. When the action complained of requires the immediate removal of the employee from the

workplace pending a decision concerning any formal action to be taken v. Alleged gross incapability will normally lead to immediate suspension with pay.

5. Suspension will normally be effected immediately. However, where capability procedures have

commenced and the Manager becomes aware of additional information that leads them to the conclusion that the employee should now be suspended, this will be actioned at that time by an authorised senior manager (see Para 9.6.2).

6. The suspension will be reviewed regularly by the Human Resources Department who will ensure that

matters are dealt with without undue delay to the process.

9. Appeals

1. An employee has the right of appeal against any level of warning under this Procedure. Appeals against formal warnings up to and including first written warning will be heard by a police officer of Superintendent rank or a member of Support Staff of grade W12 or above who has had no previous involvement in the case. Appeals against a final written warning will be heard by the Assistant Chief Constable where they have had no previous involvement in the case. All appeals against dismissal will be heard by the Deputy Chief Constable.

2. Any employee wishing to register an appeal must submit their specific grounds for appeal within 10

working days of receipt of the written confirmation of the level of capability action, to the Chair of the original hearing. The appeal will normally be heard and considered within 15 working days of receipt of the paperwork by the relevant Officer.

3. The employee’s written notice of appeal should include full and specific details of the grounds for appeal

and whether the appeal is against the finding and/or the level of action taken. 4. The Human Resources Department will arrange the Appeal Hearing ensuring that a minimum of 10

working days notice of the date, time and location of the Appeal Hearing is given to the employee. 5. At least 5 working days before the appeal hearing, the Human Resources Department will

circulate/confirm the documents to be considered at the Appeal hearing. This will include the employee’s written notice of appeal, a statement from the Chair of the original hearing outlining the circumstances of the case, the action taken to date and any other relevant correspondence during the intervening period. It will also include witness statements but witnesses will not normally be asked to attend appeals unless the Chair of the appeal considers it to be absolutely necessary.

6. Any employee pursuing their right of appeal has the right to be represented by a colleague or a member

of Unison. 7. The Chair of the Appeal Hearing will make a decision having due regard to the following:

i. Whether the capability action was fair and reasonable in light of the information known to management at the time of the original hearing

ii. Whether the prescribed procedures were correctly and fairly implemented 8. The Chair of the Appeal Hearing can make the following decisions based on the above:

i. To dismiss the appeal and endorse the formal action taken at the original Hearing.


ii. To uphold the appeal and have the formal sanction removed from the employee’s personal file and re-instate the employee if the employee has been dismissed

iii. To dismiss the appeal as to the finding but substitute a less serious sanction The employee will normally be informed of the Chair’s decision at the end of the actual Hearing. In some circumstances the Chair may decide to adjourn to obtain further legal advice and recall the parties no later than 3 working days after the appeal hearing to give their decision. Either way, the decision will be confirmed in writing to the employee within 5 working days of the Chris’ decision being given.

9. If, in exceptional circumstances, evidence is introduced during an appeal that is considered to be new

and significant, the Chair of the original hearing may be called to hear that evidence and consider whether it would have altered their original judgement. If subsequently the employee still wishes to appeal the appeal hearing will continue.

10. There is no further right of appeal. The Chair’s decision is final. In some cases an employee may have a

right to pursue their case via an Employment Tribunal.

10. Capability and Sickness/Attendance Record

1. If an issue of capability appears connected to a medical condition then what happens will depend entirely on the nature and severity of the condition. Serious or chronic illness may be regarded differently than persistent absence for minor ailments. In either case, if an employee’s difficulties appear to be as a result of medical causes then the Occupational Health Department should become involved in the case.

2. Informal counselling will be utilised to highlight areas of concern regarding attendance but should no

improvement be seen then formal methods will be used after consultation with the Human Resources Department.

3. Some medical conditions may amount to a disability under the Disability Discrimination Act. This Act

cites a disabled person as one who ’ has a physical or mental impairment which has a substantial and long-term adverse affect on their ability to carry out day-to-day activities An impairment will affect day to day activities only if it can be shown to reduce one of the following: Mobility; manual dexterity; physical co-ordination; speech, hearing or eyesight; the ability to lift, carry or otherwise move everyday objects; memory or the ability to concentrate, learn or understand; a perception of the risk of physical danger’.

4. The impairment must last or be likely to last for at least 12 months.Under the Disability Discrimination Act

the Constabulary has a duty to make reasonable adjustments to workplace arrangements so as to avoid placing a disabled employee at a disadvantage, where the Constabulary has been made fully aware of the employee’s disability. This duty will extend to making reasonable adjustments to any alternative positions that may be offered to the employee to avoid termination of contract. Supervisors should ensure that they are aware of any permanent disability amongst their staff and bring such matters to the attention of the Human Resources Department.

Long Term Absences/Chronic Illnesses

5. Where incapability due to long term ill health occurs it is important that the employee’s illness is

discussed with them and the effect their continued absence from work could have on their employment is raised periodically with them. When consulting with the employee it is important that the employee’s own opinion on their condition is sought, and a discussion is held as to a likely return to work and/or alternative positions.

6. A thorough medical investigation through the Constabulary’s Sickness Monitoring Process should take

place. It is important that the medical position is investigated to allow the Constabulary to make an informed decision about the future employment of the employee i.e. the likelihood of a return to work either immediately or at some point in the future. The investigation will involve seeking, with the


employee’s consent, a medical opinion from the employee’s own doctor together with any Specialist’s report where necessary.

7. Having obtained the necessary medical advice, the Constabulary will then seek to ascertain whether

there is an alternative position, which the employee can fill to avoid termination of contract on the grounds of incapability. The employee will be informed that the organisation may consider termination of their employment if no such alternative can be found. The employee will be given an opportunity to state their case to the Divisional/Departmental Commander. He/she will consider the statement of the employee in consultation with the Human Resources Department, take account of medical evidence and any relevant factors such as the feasibility of a temporary replacement, the effect of continued absence on other employees and the general effect on the service because of the position the employee holds.

8. If appropriate the Divisional/Departmental Commander will recommend dismissal to the Deputy Chief

Constable.

Repeated Short Term Absences

1. In cases where an employee takes unacceptable intermittent periods of absences a process should be

followed in line with the Capability procedure, looking at each case on its own merits. The following factors should be taken into consideration.

Length of the absences

Frequency of the absences

The nature of the job and nature of the illnesses

Any matters arising from Return to Work interviews

Impact of the absences on the service and colleagues

Cost implications of alternative ways to undertake the work 10. The Supervisor will carry out a review of the employee’s attendance record and reasons for their

absence. 11. The Supervisor will undertake an attendance interview and provide the opportunity for the employee to

make representations about different periods of absence at an informal interview and provide reasons for these, highlighting any underlying medical conditions that may need further investigation. If an employee has not seen the Occupational Health Unit then a referral should now take place to identify any underlying medical conditions.

12. Where an underlying medical condition is discovered the Manager in consultation with the Human

Resources Department will consider whether or not to deal with the problem as a capability issue. If the condition is deemed to be serious then the employee’s position will first be considered under the DDA. If the condition is deemed not to be of a serious nature then their position will be considered under the Capability procedure.

13. In accordance with Para 9.4.5 a counselling interview should be initiated by the Supervisor who will

make clear to the employee that if their level of absence continues their continued employment may be in jeopardy.

14. Where absences give cause for sufficient concern, and problems persists/worsens it may be appropriate

to consider the removal of the entitlement to self certification of sickness (in accordance with the Constabulary’s Sickness Policy – Section 3.5) and require the employee to submit a medical certificate to cover each period of absence. Should the employee be charged for such a certificate then the Constabulary will bear the cost of this.

15. If informal methods fail, a formal capability interview as at Section 9.5 will be convened by the Manager

with the employee to discuss the situation. The difficulties caused by the sickness absence should be discussed e.g. effects on the service and work colleagues. The employee should be given the opportunity to identify any problems that might be contributing to the sickness absence.


16. The employee should be advised of the requirement for a specific improvement in their attendance record with appropriate and achievable targets and the consequences of failing that target i.e. that their level of sickness may lead to the termination of their employment. The employee will be advised that their sickness absence will be monitored for a specific period in accordance with Section 9.5 of this policy.

17. A further interview will then be held with the employee at the end of the review period, along with their

representative to review the situation 18. If the problems continue to exist it may be necessary to progress the matter with a capability hearing

(Refer to Section 9.6). The employee will be advised at this hearing that the level of absence is unacceptable. The difficulties caused by the absence and targets for achievement should be covered and failure to improve covered in detail. As part of this Hearing process the employee will be asked to supply any factors in mitigation. For the outcomes that can result from a Hearing please refer to Section 9.7.

11. Other Considerations

If an employee refuses to take part in the capability procedure, they will be advised that it will be in their best interests to provide some justification or account of their actions. However, if they still refuse, having attempted to convince them of the benefits of participating in the investigation, appearing and presenting their case at any capability hearing that may be convened, they will then be written to formally explaining that any formal action will be taken based on the information the Constabulary has to hand. This action will be taken in their absence if necessary. When a situation occurs in which there are several separate allegations of incapability, all the issues will be dealt with in one hearing. A full enquiry into all the issues will take place and each issue will be considered separately at any capability hearing that may be convened. The level of warning issued will reflect the totality of the severity and the impact of all the issues taken together. The Human Resources Department is responsible for monitoring the capability procedure and promoting consistency in its application. This will ensure allegations of incapability are dealt with in a similar manner, and if found to be substantiated, that similar and appropriate sanctions are applied.

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