Here’s the transcript from our recent webinar on capability…
“Let’s talk capability. First of all, what do I mean by capability? Well, it’s the opposite of misconduct, they are two sides of the same coin, and capability is to do with ‘can’t do’ and misconduct is ‘won’t do.’
Now I’m going to talk to you about the difference between can’t do and won’t do, here’s an example, I can’t ice skate. I’ve tried it and I fell over, and I know it is not something I am capable of. I won’t trampoline, I don’t know how to trampoline, I don’t know if I could do it if I tried it, but I don’t want to find out. There’s a big difference between can’t and won’t.
Someone may be able to read but they may be incapable of reading a story effectively to a small group of children, and this would be a capability issue.
Lack of capability is normally addressed through training, so we could learn to ice skate, we could learn to read a story. But, if we attend the course and refuse to try to learn, that makes us display misconduct rather than lack of capability, there’s a difference. This is where the issue lies with capability, people just don’t like using capability procedures, they just don’t feel confident with it.
If you have a colleague who is under-performing there is a good chance this is a capability issue. If someone is qualified, experienced and yet is not performing in their role, it has to be asked whether they are capable? Are they able to apply what they know? Also true could be that someone is unqualified and inexperienced and not performing in their role, the same question has to be asked. Are they capable?
You can’t expect someone to walk in through your front door and be capable of everything, you may have different policies and procedures that need to be read, you may have a different ethos to their previous setting, you may have a different approach and practices that they need to be trained in.
They won’t know everything on day one. They may well have had a different experience elsewhere, they may have worked somewhere with poor standards, they may have been told wrong previously so they have to unlearn what they know. They may not have had good quality training, just because they’ve got a certificate, just because they’ve got a qualification doesn’t mean that the underpinning training was any good. They may have worked somewhere with a very very different approach to you. You need to retrain them.
The first thing is the job description, this is your best friend forever.
Without a job description how does the candidate know what the job involves, so you must make sure you produce a job description and share it with your candidates prior to them being offered a role. If they understand the job that they are about to take and what your expectations are, if they can’t achieve that, if they can’t demonstrate that capability, they may well take themselves out of the selection procedure.
With new starters, they need an effective induction. Most new starters do receive effective induction, most nurseries are smart to this. What you need to do is make sure that your inductions are carefully planned and this can make the difference between having capability issues in the future and now.
What about room transitions? People transitioning from one room to another need an effective induction. Practices may be different, procedures may take on different levels of relevance, just because someone is qualified doesn’t mean to say they are experienced with all age levels. Not all nurseries do this and I think that’s something amiss, and something for you to think about. What is your transition induction procedure?
What happens when training has been completed, inductions have been completed and someone has been with you for some time? How does underperformance work then and how do you deal with it?
The first ask you have to have with yourself is can we fix this? This is what we call the Bob the Builder question.
If someone has been brought in at a level 3, say a nursery nurse, qualified, experienced to work in your toddler room, and they are performing not to that standard. You’ve done the induction, you’ve done the retraining, but they’re not able to do the job. What you’ve got to ask yourself is are they going to make it?
Should you be extending the probationary period or should you cut your losses and run? If you the answer is yes and extend, you support and manage with good intention. If it doesn’t work out you’ve formally fed back to them what you needed, you’ve tried, you’ve explained with them what will happen, consequential assertion we call it, if it doesn’t happen this is what’s going to happen, and all will be good.
What if the probationary period was six months ago? If that’s the case you need to sit them down and let them know that you are not happy. You need to outline what’s happening and what your concerns are. No manager has ever got into trouble by expressing a concern. You write up your conversation as a file note, you agree actions, maybe retraining, going through policies and procedures with them again, assigning a buddy or a mentor, putting on a course, providing them with regular one to ones or providing additional supervision. You keep your end of the bargain.
If there is no improvement the capability procedures need to be followed, and if you haven’t got one you need to get one. Capability procedures are formal, they’re like your disciplinary and your grievance procedures, so make sure if you’re using them they are non-contractual. Now, what do I mean by non-contractual? Non-contractual matters because you may have decided not to follow your formal procedures, i.e. under two years service, it may well be that it’s a lost cause, the probationary period is in effect and we’re not going to complete. In the formal procedures we like to be able to look the employee in the eye and say we didn’t want to be here, we’ve tried an informal approach but unfortunately this is where we are, and we now need the formal structure of the capability procedure.
The first meeting when you’re under the capability procedure, that may result in a letter of concern or a first improvement notice. Hearings will be very similar to that of a disciplinary hearing, just obviously it’s to do with capability rather than conduct. In a capability hearing we express concerns, in a disciplinary hearing we have complaints, very different tone.
There are five potentially fair reasons for a dismissal in the UK, and they are redundancy, misconduct, capability, some other substantial reason, and what a statutory reason. So perhaps they are not capable of doing the role, then a capability dismissal could be fair.
Good luck with all of this, I hope you find it effective.”
If you need any help with this or any aspect of HR or employment law please contact us on 01527 909436