Capability Procedure Agreed 2024

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Capability Policy and Procedure
This policy sets out the procedure to ensure that the Town Council deals with
Capability matters in a fair and consistent way.
Approved by Council 22 April 2024

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1.

Introduction

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.
2.

Scope

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.
3.

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.
Where action being taken is with regard to the Town Clerk the matter will be
dealt with by, the Mayor, the Deputy Mayor and a Committee Chair (agreed by
the Mayor and Deputy Mayor); these 3 people will agree on a course of action,
including obtaining any advice that is required and the appointment of an
appropriate liaison person.
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.
Only the Town Clerk has the right to suspend an employee and provide oral or
written warnings for minor misconduct.
Every effort will be made to ensure that any hearings will be conducted by
people who have not been involved in any matters which have led to the
hearing taking place, that may mean using Councillors who are not in the roles
specified in this procedure or who do not normally sit n the Committees
referred to in this procedure. In extreme circumstances, in order to obtain
independence it may mean the hearings are considered by persons who are

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not Cullompton Town Councillors; in such instances the composition of the
hearing panel will need to be ratified by the full Town Council.
4.

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
• Other conditions set out in the “Green Book”
5.

Representation

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 or another lay-person.
Representatives can take an active part in review meetings.
6.

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.

7.

The Informal Procedure

The Town Clerk (or the Mayor, the Deputy Mayor and a Committee Chair
(agreed by the Mayor and Deputy Mayor in relation to matters concerning the
Town 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
Town 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 Town Clerk. The Town 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.

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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.
8.

The Formal Review

If informal discussions have proved unsuccessful in raising performance levels
to the standards set by the Town 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.
8.1 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 Town Clerk (or the Mayor, the Deputy Mayor and a Committee
Chair (agreed by the Mayor and Deputy Mayor) in relation to matters
concerning the Town Clerk) will carry out the Review.
The review has four main purposes:
1. To allow the Town 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 Town 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 Town 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.

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Ideally, standards of performance should be agreed between the Town Clerk
and employee. However, in the absence of such an agreement, the Town
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 Town 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 Town Clerk should confirm the
outcome of the meeting in writing to the individual within 5 working days.
8.2 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 Town Clerk (or the
Mayor, the Deputy Mayor and a Committee Chair (agreed by the Mayor and
Deputy Mayor) in relation to matters concerning the Town 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.
8.3 Stage 3 – The Final Capability Review
The Final Capability Review will be heard by three members of the Town
Council who have not been involved with previous review stages.
The Town 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 performance.
The employee will have the opportunity to respond and put forward any points
they wish to be considered.

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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.
8.4 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
Stage 3

Town Clerk

Formal
warnings
Dismissal

Councillors acting as a Panel agreed by
Council

8.5 The Right of Appeal
In the event of a formal warning or dismissal, the employee has the right of
appeal. If an employee wished to appeal they should write to the Town Clerk
(or the Mayor in relation to matters concerning the Town Clerk) setting out the
grounds of their appeal. The Appeal must be made in writing within 10 days
of the date of the letter confirming the formal warning or dismissal. The Appeal
letter must set out the grounds for the appeal
Three members of the Town Council will be nominated by the full Council as
an Appeal Panel to hear the appeal, providing that they have had no previous
involvement in the matter, assisted by an independent adviser, if appropriate.
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 Chair
of the Final Capability Review (Stage 3) and will consider the comments of the
employee.
The decision of any appeal hearing is final.
8.6 Training

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

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Capability Procedure
(this is for guidance only please refer to policy document for detailed information)
Informal Action

Formal Action

(Section 7 of Policy)

Section
Policy

8

of

Meeting

A) with Town Clerk & Employee.
Or
B) in matter s relating to the Town Clerk, the Mayor,
the Deputy Mayor and a Committee Chair (agreed
by the Mayor and Deputy Mayor and the Town Clerk

Further
required

Review within max 2 months

action

Capability Review

Stage 1 Meeting
A) with Town Clerk & Employee.
Or
B) in matters relating to the Town Clerk, the the
Mayor, the Deputy Mayor and a Committee
Chair (agreed by the Mayor and Deputy Mayor)
and the Town Clerk

Improvement
months

within

3

If there is a shortfall in performance a formal
warming and an agreed action plan will be issued
(Section 8.1 of the Policy)

No Improvement within 3 months
max

No Further Action

Stage 2 Meeting
A) with Town Clerk & Employee.
Or
B) in matters relating to the Town Clerk the
Mayor, the Deputy Mayor and a Committee
Chair (agreed by the Mayor and Deputy
Mayor) and the Town Clerk

Improvement within 3 months
max

No
action

If there is a shortfall in performance a formal
warming and an agreed action plan will be
issued
(Section 8.2 of the Policy)

further

No Improvement within 3 months
max
Stage 3 Final Review Meeting
with 3 members of the Town Council
providing that they have had no previous
involvement in the matter, assisted by an
independent adviser, if appropriate.
If there is a shortfall in performance dismissal
(Section 8.3 of the Policy)

Appeal
(Any appeal must be made in writing within 10 days
of the decision (either formal warning or dismissal))
Three members appointed by Council will form an
Appeal Committee will hear the appeal, providing that
they have had no previous involvement in the matter,
assisted by an independent adviser, if appropriate.
(Section 8.5 of the Policy)

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