Capability and performance reviews

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.

It is important that from the outset of your employment you have an effective induction to the role so that you understand what is expected of you. You may also be subject to a probation period – see the section on probation periods and performance below. 

Capability procedures should provide a way of supporting your improvement if your performance is below the expected standard for your role. Employers should not use the capability procedure to address misconduct or wilful acts – they should use disciplinary procedures instead. 

If you have made a mistake, such as a drug error, this is likely to 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. See the section below on dismissal and capability if you are undergoing a capability process and have a disability or long-term health conditions. This may also include menopause symptoms.

If you work in the NHS, the NHS Employer's website offers guidance to managers about the processes that should be followed. If you work outside the NHS, the ACAS online advice: Conduct and capability procedures when managing performance is helpful.

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

The meeting should focus on discussing what the concerns are, establish the reasons for them, and conclude with an agreement on how you can be supported to achieve the required standards and objectives.

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.

It can be helpful to 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 or a long-term condition. 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. Any 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.

Read your employer's capability policy so that you are clear about the purpose of the meeting and can prepare. There may be several meetings and stages to the capability process, depending on the policy.  You are likely to be told that you can be accompanied at the meeting. You should also be made aware of the issues of concern. 

If you are asked to attend a formal capability meeting, please contact us.

At an initial meeting you should be able to agree an action plan containing objectives, how they will be met and that gives reasonable timescales for achieving them. All objectives should be 'SMART' - more information on this is in the section on performance reviews and appraisals below.

A second formal stage may be held if you fail to meet your objectives. Read your employer's policy to understand the 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.

There will normally be a 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. It would be unfair to dismiss you for a one-off incident unless it was very serious.

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. 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 for more information.

If there are performance issues at work or if you go on sick leave due to menopausal symptoms, your employer has clear duties under the Equality Act 2010. Our Menopause and you at work guidance provides more information about ways of working and the support you can expect from your employer.

If you work in the NHS their menopause guidance may help you: Supporting our NHS people through menopause: guidance for line managers and colleagues and NHS Wales Menopause Policy.

If there is still no likelihood of you being able to fulfil your contractual obligations, despite changes and/or reasonable adjustments being implemented, then the employer can dismiss you on the grounds of ill-health. Your employer should follow a fair and reasonable process.

Your dismissal should not become effective until any contractual sick pay is exhausted or paid in lieu.

NHS ill-health retirement (IHR)

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

Anyone can refer a registrant to the Nursing and Midwifery Council (NMC) over fitness to practise issues or patient safety concerns. 

Lack of competence is described by the NMC as: 

“an unacceptably low standard of professional performance. For instance, if a nurse, midwife or nursing associate demonstrates a lack of knowledge, skill or judgment, which shows they’re incapable of safe and effective practice.”

Cases of ill-health do not always need to be referred to the NMC if the registrant acknowledges the condition and there is no risk to patient safety. The registrant must also take the necessary steps to manage their condition following medical advice. 

If you're a member facing an NMC investigation, please contact us. It is very important that you do not correspond with the NMC before you have contacted us.

Your role objectives and competencies should have been given to you at the recruitment stage and outlined in your job description. There may be a competency framework against which your performance will be managed and you should be made aware of this.

The performance review process may include regular meetings with your manager. These may be both formal and informal 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 and time frames, plus 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: you should be clear on what actions to take to achieve the objectives.
• Measurable: so you both know when an objective has been met.
• Achievable: reasonable and realistic to reach the goals set.
• Relevant: objectives may relate to your role, team/department/business objectives.
• Time-bound: realistic timescales 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 any concerns.

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

If you are employed in the NHS, your pay is linked to the development review process, which can be found in the NHS Terms and Conditions of Service handbook at annex 23. See our section on pay progression and performance below.

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 above.

Dismissal whilst on probation

Legally, you have limited protection from dismissal if you have been employed for less than two years (one year if you are in Northern Ireland). 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. 

If considering dismissal, your employer should follow their normal capability and performance procedures; see the section on dismissal on the grounds of capability above.

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

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

Preceptorship

The NMC recommends all newly-qualified nurses have a period of preceptorship when commencing employment. See our guidance on NMC and preceptorship, which includes information about the framework required within the NHS and independent sector.

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 that 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. The developmental review process can be found at section 6 in the NHS Terms and Conditions of Service handbook.