Capability Procedure

(A pdf version of this policy is available for download here)


This procedure is used to support, enhance, and improve the performance of employees. This procedure sets out a framework for resolving issues relating to poor performance, in accordance with the Employment Rights Act 1996, Human Rights Act 1998, and the ACAS Code of Practice on Disciplinary Procedures. The procedure aims to ensure that consistent and fair treatment is given to all individuals.


Where there are issues of misconduct or of negligence, these will be dealt with under the Disciplinary Procedure. For matters of sickness, disability, or ill health, the Absence Management Policy will be used.

General Principles

The Procedure is not a substitute for good management practices. It should only be invoked when initial attempts to improve performance have been unsuccessful following discussions between the employee and their manager. The employee must be given at least 5 workings days’ notice of the requirement to attend a formal review meeting or an appeal.
The employee has the right to be represented at formal review meetings or appeals.
In the event of a formal warning or a dismissal, the employee has the right of appeal.

Related Procedures

When using the procedure, it may be necessary to refer to the contents of other agreed documents such as:

The Equal Opportunities Policy
The Grievance Procedure
The Absence Management Policy


Employees have the right to representation at hearings and appeals relating to any stage of the formal procedure. This can be a trade union representative or a work colleague.
Representatives can take an active part in review meetings.

Action against a Trade Union Official

In normal circumstances no action will be taken against an officer of a recognised Trade Union until the matter has been discussed with a full-time officer of that union.

The Informal Procedure
The Clerk (or Chairman & Vice Chairman of the Staffing Committee in relation to matters concerning the Clerk) should deal with minor issues of poor performance in the first instance.

A meeting with the employee to discuss poor performance should be arranged and any problems or areas for concern should be raised by the Clerk. Appropriate support and training
should be offered to assist the individual towards meeting the required standards in the future. Realistic targets should be agreed with the individual and future expectations made clear by the
Clerk. The Clerk will record the points discussed in the meeting and confirm this in writing to the employee along with the agreed plan to achieve acceptable levels of performance. A review
meeting should be arranged within 2 months to assess whether the targets have been met and whether the performance is satisfactory.

In most cases, these meetings should provide sufficient guidance, support, and clarification of standards to rectify the situation.

However, the formal procedure will apply when:

Previous informal advice or guidance has proved ineffective; or The performance is so poor that informal discussions are unlikely to help.

The Formal Review
If informal discussions have proved unsuccessful in raising performance levels to the standards set by the Clerk then the formal procedure will be invoked. There are three stages to the formal
procedure. The employee has the right of representation at each stage.

During each stage, the employee’s performance will be monitored closely. The method of doing this will be made clear to them at the conclusion of each review meeting.

Stage 1: The Capability Review
The Capability Review should build on the informal discussions. It should be sufficiently specific so that the employee knows exactly what it is about their performance that is unsatisfactory and
how they can improve to the required standard. The Clerk (or Chairman & Vice Chairman of the Staffing Committee in relation to matters concerning the Clerk) will carry out the Review.

The review has four main purposes:

1. To allow the Clerk to discuss with the employee: (i) the standards of work required; (ii) what improvement is necessary; (iii) how the employee can be helped to achieve them;
and (iv) how improvement will be assessed and the timescale which must be reasonable.

2. To allow the employee to: (i) obtain a clear understanding of what is expected of them; (ii) give an explanation or comment on their work; and (iii) give their views on how the
problem can best be tackled.

3. To allow the Clerk and the employee to explore other options, such as: (i) additional instruction, training, or personal development activity; or referral to occupational health,
which may involve alternative action under the Council’s Absence Management Policy. Please refer to the Absence Management Policy.

4. To make clear to the employee: (i) the timescale for improvement; (ii) how and by whom their work will be monitored during the review period; and (iii) the consequences if their
work does not improve or if improvement is not maintained.

Ideally, standards of performance should be agreed between the Clerk and employee. However, in the absence of such an agreement, the Clerk must satisfy himself or herself that
any targets set are reasonable and non-discriminatory. If training has already been given then its effectiveness should be reviewed and any further training and support agreed.

If the Clerk is satisfied at the conclusion of the review meeting that there is a shortfall in performance, the employee will be issued with a formal warning and an action plan, including
timescales, to achieve. It will also be made clear that failure to achieve the action plan will lead to the next stage of the formal procedure. The length of time given to improve will depend on
the nature of the job and the performance gap but in normal circumstances it should not be more than 3 months. The Clerk should confirm the outcome of the meeting in writing to the
individual within 5 working days.

Stage 2 – The Capability Review

If the employee fails to achieve the standards in the timescales set out in the action plan then Stage 2 of the procedure is invoked. This involves a further review based on the same structure
as Stage 1.

Stage 2 of the Capability Review will be conducted by the Clerk (or Chairman & Vice Chairman of the Staffing Committee in relation to matters concerning the Clerk). If it is concluded that
there is still a performance issue to be addressed, a further formal warning should be issued along with an action plan giving details of the standards of performance required and the
timescales within which these must be achieved. The employee should be reminded that if the action plan is not achieved, then Stage 3 will be invoked. It needs to be made clear that Stage
3 may result in a decision to dismiss the employee. Again, the length of time given to improve will depend on the nature of the job and the performance gap but in normal circumstances
should not be more than 3 months. A letter to confirm the outcome of the meeting should be sent to the employee within 5 working days, it should also explain the employee’s right to appeal
against any warning issued.

Stage 3 – The Final Capability Review

The Final Capability Review will be heard by three members of the Staffing Committee.

The Clerk who conducted Stages 1 and 2 should also be present to provide details of the previous review meetings and of the steps taken to encourage improvement in the employee’s

The employee will have the opportunity to respond and put forward any points they wish to be considered.

Consideration should be given to any alternatives to dismissal, such as redeployment or options of downgrading. However, this may not always be possible and will depend on each individual
situation and the circumstances of the organisation.

The Panel must satisfy themselves that they have heard all of the relevant information and that the employee has been given sufficient opportunity to improve. If they consider that the
employee’s performance remains unsatisfactory, they must inform the employee that their employment is terminated on the grounds of capability or any alternatives to dismissal.

The employee’s dismissal will be with notice or, if serving their notice period is not in the interests of the Council, they will receive pay in lieu of notice. The dismissal must be confirmed
in writing within 5 working days, stating the reasons for it, and informing the employee of their right of appeal.

Levels of Authority

Guidance is given here on the appropriate levels of authority, although alternative arrangements may have to be made on occasion.

Formal Officer Authority
Stage 1 & 2 Clerk Formal warnings
Stage 3 Staffing Committee Dismissal


The Right of Appeal

In the event of a formal warning or dismissal, the employee has the right of appeal to the Clerk (or Chairman & Vice Chairman of the Staffing Committee in relation to matters concerning the
Clerk). The Appeal must be made in writing within 10 days of the date of the letter confirming dismissal.

Three members of the Appeal Committee will hear the appeal, providing that they have had no previous involvement in the matter. They will be assisted by an independent adviser.

The appeal will take place as soon as is practically possible. The Appeal Panel will consider the details of the poor performance presented by the Chairman of the Final Capability Review and
will consider the comments of the employee.

The decision of any appeal hearing is final.

Appropriate training will be given to the Clerk or any Members who might be involved in capability or appeals meetings to ensure that they fulfil their responsibilities under this

Adopted by Full Council at the meeting held on 10th August 2022 under minute number FPC181/22. Due for review in August 2025.