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Guarding against the capability procedure

The purpose of this advice note is to guide readers through the steps they can take to protect themselves against inappropriate use of the capability procedure.

A little context

As a school leader, your performance is reviewed and evaluated under the school’s performance management arrangements – these are typically enshrined in the school’s staff appraisal policy. A record of agreed objectives, standards and other supporting dialogue will be made and retained under the provisions of the policy.

In the main, most people will perform at an acceptable level of overall capability; some will occasionally exceed expectations; some will perform at levels below expectations but will recover quickly with informal short-term or temporary support (such arrangements are often set out in what are known as support plans).

Where performance falls below agreed and expected levels, the school has a duty to address such performance under the capability procedure, especially in cases where the usual performance management arrangements are failing to improve performance or achieve agreed standards of performance.

Transition to capability meeting

If your performance has fallen short of agreed and expected levels, you are likely to face the prospect of a meeting with your line manager, the purpose of which will be to discuss their concerns about your level of performance and to establish the facts of each of the areas of work under discussion. At the meeting, you will be able to respond to the concerns about your performance and present any relevant evidence to support your overall position. 

The expectation is that this meeting will reduce the likelihood of invoking the capability procedure or triggering a prolonged period of sickness absence. 

The meeting is your opportunity to protect yourself from the matter escalating and to challenge the prospect of further action being taken under the capability procedure.

Protecting yourself

In any ‘transition to capability’ meeting, it will be perfectly natural to protect yourself from any further escalation of the procedure by anchoring your position and any subsequent challenge to one or more of the following:

  • Standards of performance – have your performance standards been clearly articulated and sufficiently understood?

  • Objectives – are your objectives clear and understood? (and SMART?)

  • Evidence – is the evidence you need to produce clear and understood?

  • Progress – has your progress against your objectives been tracked, evaluated and (if necessary) modified?

  • Support – has your employer provided you with the support you need to get the job done (e.g. time, budget and other resources, training and so on…).

  • Surprises – there should be no surprises in discussions relating to performance management or capability.

  • Mitigation – is anything, beyond your control, affecting your performance?

  • Health – is or has your health affected your performance, and if so, how?

  • Reasonable adjustments to your working arrangements – if, following an assessment of your capability, adjustments to working arrangements are recommended by your GP or by an occupational health advisor, has your employer supported you making these adjustments? (E.g. temporarily or otherwise, reducing your workload, adjusting your working hours, providing additional time to achieve particular tasks/objectives, modifying targets and outcomes, exercising flexibility where appropriate etc…)

  • Process – is your employer using the capability procedure correctly and are they using it for the purpose for which it is intended?

  • Duty of care – is your employer exercising flexibility, discretion and reasonableness in how it is dealing or intending to deal with your performance and the support it is providing or intending to provide.

The above checklist is not necessarily exhaustive but it provides a framework from which NAHT members may wish to draw to give them a measure of protection from inappropriate use of the capability procedure.

For further advice and guidance, NAHT members may contact the Specialist Advice Team on 0300 30 30 333 or on e-mail at specialistadvice@naht.org.uk.


Page Published: 18/12/2013