Human Resources - Capability: police staff protocol (L1100)

1. Summary of changes

1.1 The following amendments were made to this protocol in February 2024 

• Paragraph 3.10.1 amended - minor amends to hyperlinked document. 

2. What this protocol is about

2.1 This protocol applies to all police staff working under a contract of employment and specifically relates to capability due to poor performance, lack of skill and ability including practice requiring improvement decisions and/or poor attendance due to ill health.

2.2 This protocol does not apply to misconduct - refer to L1200, however matters assessed as practice requiring improvement will be dealt with under this protocol. Situations involving capability due to ill health may, in the first instance be more appropriately dealt with under the following protocols:

• L180 Protocol - Attendance management
• L1200 Protocol - Police staff discipline
• L1280 Protocol - Employment security, restructuring and redeployment
• L1300 Protocol – Equal opportunities in employment

2.3 Managers are responsible for ensuring that this protocol is applied fairly and appropriately and will be expected to tackle capability issues as they arise, rather than waiting until the annual performance development review.

2.4 Staff within probation - subject to paragraph 2.5, employees who have not passed their probation will be subject to regular reviews of progress. Should formal action for capability become necessary they will be dealt with at stages two or three of the protocol. In such an eventuality a superintendent or equivalent level police staff manager can chair the hearing and may consider all options up to and including dismissal.

2.5 Probationers with more than 12 months service are subject to the full rigours of the process.

Compliance with this policy and any linked procedure is mandatory for all officers, staff, special constables, volunteers and contractors. However, the Head of HR Operations may exercise discretion to consider reasonable exceptions to this protocol, on a case-by-case basis where clear rationale is provided.

 3. Detail the protocol

3.1 Employees have a contractual responsibility to achieve a satisfactory level of performance in their work. Essex Police and Kent Police have a responsibility to set realistic and achievable standards, provide help and encouragement to reach those standards, and to make sure that employees understand what is required of them, in terms of both performance and attendance.

3.2 Accurate role requirements are essential documents to achieve this.  Standards should be measurable and any shortfall in performance should be pointed out to the employee concerned. Consideration will need to be given as to whether there has been adequate instruction, training, development, supervision and support in order for the employee to achieve the required standard. Effective recruitment, selection and training will help to minimise the risk of unsatisfactory performance. Where however, capability issues do arise they should be dealt with in accordance with this protocol.  

3.3 The Employment Rights Act 1996 provides that capability is a potentially fair ground for dismissal. The Act states that acceptable reasons for dismissal include “reasons related to the capability or qualifications of the employee for performing work of the kind which (s)he was employed to do.”

3.4 In order that a dismissal is deemed to be ‘fair and reasonable’ by an employment tribunal, an employer must prove that the procedure leading to the dismissal was reasonable giving consideration to all the circumstances, and that the reason for the dismissal was fair. The minimum expectation is that the statutory dismissal protocol must be followed.

3.5 In cases of lack of capability it is essential for the employer to show that:

• what was required of the employee was clear
• the employee was informed of, or must have been aware of, those requirements
• the employee was informed that their performance fell short of those requirements
• the employer had done everything reasonable to assist the employee to improve their performance
• the employee had been given an opportunity, over a reasonable time period, to improve job performance
• the continuation of an employee’s employment was only re-evaluated as a final resort. This may include considering other options such as redeployment, prior to any decision to dismiss

3.6 Essex Police and Kent Police will at all times endeavour to ensure that employees achieve and maintain a high standard in their work. To this end it will ensure that standards are established, performance and/or attendance is monitored and employees are given appropriate training and support to meet these standards.

3.7 When it is apparent that an employee is not achieving the required level of performance and/or attendance, the respective force will deal with the situation in a consistent, fair and professional manner, normally through the use of a supportive development plan for performance and an Attendance Support Meeting (ASM) template for attendance.

3.8 All employees must therefore be:

• advised as soon as their performance and/or attendance falls below expected standards
• made aware of the standards required, the reasons for any action and the implications of not achieving improved performance and/or attendance
• informed of progress at all stages of the formal protocol
• advised that they have the right to be accompanied by a workplace colleague or trade union representative during the capability protocol

3.9 All managers/supervisors must:

• investigate all the relevant facts
• advise the employee a period during which (s)he has a chance to improve performance and/or attendance
• take all reasonable action to assist and support the employee during the above period
• maintain a complete, written record of all discussions and actions throughout the process

3.9.1 The individual should be given a copy of the written record and it is preferable, wherever possible, that this record is signed by the manager and employee.

3.10 The principle aims of the capability protocol are to:

• encourage employees to achieve and maintain the performance levels and standards required by Essex Police and Kent Police
• enable managers to deal quickly, appropriately and effectively with employees who are unable to meet the forces’ standards, as demanded by their role
• ensure fair and consistent treatment of all employees to whom the protocol is applied
• meet legislative requirements

3.10.1 The protocol follows a prescribed format, ensuring legislative compliance and it is as follows:

• early management intervention – the informal stage where a development plan is produced in order to address the areas of performance and/or attendance which require improvement
• stage one, stage two, stage three – the formal stages of the process where at stages one and two a meeting may be held and a hearing at stage three
• appeal – an appeal can be lodged after each and/or every stage of the formal process (stages one, two and three)

3.10.2  The attached link gives advice regarding handling challenging conversations with staff members: ACAS guide to challenging conversations I ACAS detailed guide.

3.11 Advice in confidence - an employee may seek advice in confidence from a representative of the Human Resources department or a Trade Union representative at any stage of the capability protocol. They also have the right to be accompanied by a workplace colleague or trade union representative during the capability protocol.

3.12 Where a grievance is raised by an individual as a direct response to a legitimate management action to deal with performance and/or attendance, the formal stage of the grievance or complaint will be undertaken by an independent manager, to be selected by the local policing area/divisional/departmental senior management team (SMT), and the two resulting investigations should, wherever possible, run simultaneously but independently.

3.13 In cases where the allegation is that the proposed action is, in itself, either discriminatory or the reason given by management is not the real reason for the proposed action, the grounds for the grievance should normally be considered as part of the management case. This may be during the investigation, as part of any formal hearing or at the appeal stage, depending on when the grievance is raised.

3.14    Withholding pay increments

3.14.1 Individuals who are subject to formal stages of the process could have their annual pay increment withheld until their performance/attendance improves to the appropriate standards.

3.14.2 Should the individuals performance/attendance become satisfactory the annual pay increment may be paid. 

3.15    Medical redeployment

3.15.1 In exceptional circumstances, and despite the best efforts of those concerned, it may prove impossible or impractical for reasonable adjustments to be made that allow an individual to remain in their contractual role.

3.15.2 In such circumstances, it will be necessary to convene a hearing at stage three of the capability process in order to consider what arrangements may be put in place to keep the individual in employment wherever possible. It is the clear expectation that individuals will normally be redeployed at the hearing if they cannot remain in their contractual role.

3.15.3 Individuals who are granted redeployment based on their medical condition are dismissed on the grounds of capability from their contractual role, in accordance with the provisions of section 98(2), Employment Rights Act 1996, at the hearing and either immediately redeployed into a suitable role or granted redeployee status for a three-month notice period. Where possible the HR representative at the hearing will have sought to identify a vacant post, in advance of the hearing, that can be offered to the individual. 

3.15.4 Unless the individual is immediately redeployed as a result of the hearing, they will normally remain in their contractual post with a period of redeployment of three months. During this time efforts will be made to assist them in securing alternative employment which matches the advice from occupational health in terms of functional capacity. Individuals whether or not they are immediately redeployed will not benefit from salary protection, as set out in L1280 Protocol - Employment Security, Restructuring and Redeployment.

3.15.5 In all cases following a hearing where redeployment on medical grounds is considered, individuals will be given an agreed period of time during which they will be assessed against their existing or new contractual role to ensure any required reasonable adjustments can be made.

3.15.6 As part of consideration of, or any selection process for, an alternative role advice should be sought from occupational health regarding the suitability of the role in terms of the individual’s functional capacity. This will enable managers to assess to what extent the individual’s abilities match those of the role and any reasonable adjustments that may need to be made.

3.15.7 Individuals must also be given notice that if the new role proves unsuitable, if any action plan set as part of that redeployment fails or if it proves impossible to redeploy within the three month period, and especially where all reasonable adjustments have been exhausted, the dismissal will be confirmed in writing.

3.16 Gross negligence

3.16.1 Gross negligence is a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm to persons, property, or both. It is conduct that is extreme when compared with ordinary negligence, which is a mere failure to exercise reasonable care. Ordinary negligence and gross negligence differ in degree of inattention, while both differ from wilful and wanton conduct, which is conduct that is reasonably considered to cause injury.

3.16.2 Gross negligence is the only instance where a one off act or omission by an employee may result in an immediate stage three hearing and ultimately in their dismissal, which may be with or without notice.

4. Equality Impact Assessment (EIA)

4.1 The protocol has been assessed as having a low equality impact assessment, as adhering to the protocol will eliminate any discriminatory practice.

5. Risk assessment

5.1 There is no specific risk assessment or health and safety consideration thought relevant to the content of this protocol.

5.2 Officers and members of police staff engaged within the process must remain aware that they must follow the protocol correctly otherwise the risk to the organisation of a possible employment tribunal could be raised. A failure to fully adopt the principles set out in this protocol could have a detrimental effect upon the reputation of the organisation.

6. Consultation

6.1 The following have been consulted during the formulation of this document:

• Unison
• Health and Safety
• Equality and Diversity
• Various HR Partners

7. Monitoring and review

This protocol is due for formal review every two years. In the interim period the protocol will be reviewed as necessary, particularly as a result of changes in legislation, case law, best practice and other relevant guidance, (such as ACAS).

8. Governing force policy

Related force policies or related protocols, procedures (Essex)/linked standard operating procedures (Kent)

8.1      Joint

8.1.1 This HR protocol supports the overarching HR policy L1.

• L180 Protocol - Attendance management
• L1200 Protocol - Police staff discipline
• L1280 Protocol - Employment security, restructuring and redeployment
• L1300 Protocol – Equal opportunities in employment

8.2      Data security

8.2.1 Essex Police and Kent Police have measures in place to protect the security of your data in accordance with our Information Management policy.

8.3      Retention and disposal of records

8.3.1 Essex Police and Kent Police will hold data in accordance with our Records Review, Retention and Disposal policy.

8.3.2 We will only hold data for as long as necessary for the purposes for which we collected.

9. Other source documents, e.g. legislation, APP, force forms, partnership agreements (if applicable)

• Early Management Intervention guidance
• Stage 1, 2 and 3 guidance notes
• Appeals guidance
• FAQs
• Capability flowchart