Capability and performance reviews

When are capability procedures used?

Capability procedures should provide a way of supporting you if your performance is below the expected standard.

Employers should not use the capability procedure to address misconduct or wilful acts – they should use disciplinary procedures instead.

If you’ve made a drug error/errors, this should usually be managed under capability procedures as drug errors are not normally wilful acts of misconduct.

Capability issues may also arise because of long term and persistent ill-health or sickness absence. These issues are usually dealt with under 'managing sickness absence' policies. Please note: If there are performance issues at work or if you go on sick leave due to menopausal symptoms, the employer has clear duties under the Equality Act 2010 not to discriminate against you. Employers can risk facing claims for sex, disability & age discrimination if they fail to properly support their female employees during this difficult time. Contact us if you feel you are not having the right support.

If you have been told that your performance is an issue, you should check your employer's written policies on the topic as soon as possible. If you work in the NHS, the NHS Employers website offers guidance to managers about the processes that should be followed. If you work outside the NHS, take a look at the ACAS booklet titled How to manage performance for best practice guidance.

If your manager identifies unsatisfactory performance, they will usually ask to meet with you informally.

The meeting with you will focus on discussing where there are shortcomings, establishing the reasons for them, and discussing and agreeing how you can be supported to achieve the standards expected.

As an employee, you have a contractual responsibility to achieve satisfactory levels of performance and work with reasonable care and skill. Your employment contract, local policy and job description should give you details of your terms and conditions of employment, and the expectations of the role.

The capability process is about maintaining performance standards that should have been made known to you from the start of your role - these standards should be realistic and achievable.

Look at the process as a positive opportunity to improve your situation at work.

Read your employer’s capability policy so that you can prepare for the meeting.

This is your opportunity to talk about the reasons for any diminishing performance.

If ill health is affecting your performance, it’s important you talk about it so that your employer can arrange support for you.

Managers must also consider the possibility that under-performance is the result of a disability. If it is, your employer should put reasonable adjustments in place for you to help reduce the disadvantage you might be experiencing. Please see our Health Ability Passport Guidance for more information. 

You should come out of the meeting knowing what standards you are expected to achieve and in what timescale. This timescale must be realistic and reasonable.

Most matters of unsatisfactory performance can be resolved informally through for example, monitoring, coaching and counselling. If properly handled, you should benefit from the process.

If you receive a letter from your employer inviting you to a 'first stage' formal capability meeting please contact us. The letter is likely to tell you that you can be accompanied at the meeting. It should also set out the issues of concern.

Read your employer’s capability policy so that you are clear about the purpose of the meeting and can prepare.

During the meeting, agree an action plan with your manager that details the improvements needed and gives reasonable timescales for achieving them.

The second formal stage is held when you have failed to improve and meet your objectives. Read your employer's policy to understand possible outcomes from a second formal meeting - this could include consideration of redeployment, or further time for your objectives to be met.

At each stage your employer must warn you of the consequences of failure to improve before moving to the next stage.

The third formal stage is usually the final meeting before dismissal is considered and the last opportunity for you to demonstrate improvement. Your employer may dismiss you if you fail to show any improvements or meet the objectives within the agreed time frames.

Lack of ability or skill

If you are dismissed because of lack of ability, your employer must be able to demonstrate that your poor performance is the reason for the dismissal, and there is a genuine reason to believe you’re incapable of working to the required standard. If would be unfair to dismiss you for a one-off incident.

Lack of capability due to ill health

In cases of long-term ill health, your employer should establish the medical facts and discuss any changes or support necessary before they make a decision. This could include redeployment, flexible working, reduced hours or workload, or variation of tasks and duties. Each case should be considered individually. Employers of staff with disabilities (covered by the Equality Act 2010) are obliged to consider making “reasonable adjustments” to enable staff to return to, and continue, working. This can also include allowing a higher threshold of absence for staff with disabilities before formal action is taken. See our guidance on disability discrimination and the Equality Act 2010 for more information.

After any changes and/or reasonable adjustments have been made, and if there is still no likelihood of you being able to fulfil your contractual obligations, then the employer can dismiss on the grounds of ill health. The employer's sickness or managing absence policy should be followed.

If you receive occupational sick pay as a contractual benefit, your dismissal should not become effective until sick pay is exhausted or paid in lieu. The procedures should be fair and your employer should act reasonably throughout the process.

NHS ill health retirement – a note of caution

If you are unable to continue in your NHS job because of ill health, your employer could suggest you retire on the grounds of ill health. There is no guarantee you will qualify for NHS ill health retirement benefits. Please talk to us if you are considering ill health retirement.

Anyone can refer a registered nurse or midwife to the Nursing and Midwifery Council (NMC) over fitness to practice issues or patient safety concerns. 

Examples of fitness to practice issues include:

• demonstrating a persistent lack of ability in correctly or appropriately calculating, administering and recording the administration or disposal of medicines
• demonstrating a persistent lack of ability in identifying care needs and subsequently planning or delivering appropriate care.

The NMC also states it is possible to deliver care that is clinically competent, but uncaring. You can be referred to the NMC for behaviour that indicates bad character, for example:

• receiving a caution or conviction
• accessing illegal material from the internet.

Your employer could also refer long-term, untreated alcohol or drug dependence, and unmanaged serious mental illness. Cases of ill health do not always need to be referred to the NMC if the nurse or midwife acknowledges the condition and there is no risk to patient safety. The nurse or midwife must also take the necessary steps to manage their condition following medical advice.

If, as an RCN member, you are facing an NMC investigation, please contact us.  It is very important that you do not correspond with the NMC before you have contacted to us.

Your role objectives and competencies should have been given to you at the recruitment stage and outlined in your job description.

Your line manager should arrange regular performance review meetings with you to discuss your progress and any support you may need.

The performance review process may include regular informal meetings. You may also have formal interim meetings to discuss your progress against agreed performance targets, objectives and/or action plans. Annual appraisals are usually held where your performance is discussed and feedback given.

In any review you should discuss your performance, agree objectives, time frames, and any support or development needs. It should be made clear what you need to do in order to achieve the objectives you have both discussed and agreed.

Your work objectives should be SMART:

• Specific – the objectives should state a desired outcome i.e. what do you need to achieve?
• Measurable – how will you both know when an objective has been achieved?
• Achievable – is the objective realistic and attainable and within your power to achieve?
• Relevant – do the objectives relate to any team/department/business objectives?
• Time bound – how long do you have to achieve the objectives?

If you do not agree with the objectives and outcomes of the review meeting, try and resolve the disagreement in the meeting itself.

Do not sign anything you believe is inaccurate or misleading following your review meeting. Take your notes away to consider them, then go back to your manager to discuss your concerns.

You can use our checklist to help achieve a positive appraisal or performance review meeting.

If you are on probation and there are performance issues, check your contract and any relevant policies.

Your line manager should arrange regular meetings with you to discuss your progress and any support you may need. Your work objectives should be Specific, Measurable, Achievable, Relevant and Time bound (SMART). Read more about this in our performance reviews and appraisals section within this guide.

If considering dismissal, your employer should follow their normal capability and performance procedures as outlined in this guide. 

Dismissal whilst on probation

Legally you have limited protection from dismissal if you have been employed for less than 2 years. There are, though, certain types of automatic unfair dismissal that do not require a qualifying period for an employment tribunal claim. In law, your employer cannot discriminate against you and dismiss you because of a protected characteristic, which include:

• age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race
• religion and belief
• sex
• sexual orientation.

Other automatically unfair reasons for dismissal include, whistleblowing or asserting a statutory right. 

Please see our section on dismissal on the grounds of capability within this guide.

If you think that your dismissal was unreasonable or unfair, contact us.

It may be helpful to also see our probation section on our contracts page and our guide on discrimination.

Employers are not obliged to implement a pay progression scheme but, if they do, it should be based on a fair and consistent appraisal system which assesses whether you are meeting your required objectives.

In the NHS, pay progression is conditional upon you demonstrating your required knowledge and skills, competencies and performance levels. Your employer can withhold incremental progression if you fail to meet agreed appraisal objectives or you are not working to the required performance level or standard.

NHS organisations should not use the pay progression scheme as a tool to cut pay in response to financial pressures. The scheme should be used to improve staff performance through properly structured appraisals.