Edinburgh Napier University

Capability Policy –Long-term Sickness Absence

  1. Introduction

This document sets out the University’s procedures to address capabilityin relation to long-term sickness absence.

The purpose of the procedure is to be supportive rather than punitive and to ensure the consistent and fair treatment of all employees.

If performance problems are judged to result from conduct, the University’s Disciplinary Procedurewill apply.

Where applicable, the University will always consider the requirements of the Equality Act 2010, which obligates the employer to take an employee’s disability into account and to consider making reasonable adjustments.

  1. What is Capability?

The fundamental distinction between capability and conduct is where the employee “can’t do” their role versus “won’t do” their role, the latter implying some degree of control and choice.

Either the employee or the Line Manager can raise concerns regarding capability.

Capability issues can occur when someone has previously met the standard expected but is no longer able to do so, due to a long-term sickness absence issue. This includes instances where employees have one or more periods of long-term absence and employees who experience frequent, persistent and ongoing short-term absences.

  1. Capability – Long–term Sickness Absence Process

The University considers the health, safety and well-being of all its employees as paramount, and will ensure that the appropriate support mechanisms and procedures are put in place to support all staff including those withhealth problems.The University endeavors to provide the employee with encouragement and assistance in relation to their return to work.

This process applies where an employee has been absent from work on a long-term, but not necessarily continuous basis, due to ill health.

If a member of staff is absent from work for over 28 days they will automatically be referred to the University’s Occupational Health (OH) provider for an assessment to take place, in line with the University’s Sickness Absence Policy.

If the University’s OH provider advises that an employee’s health condition is likely to be covered by the Equality Act 2010, they will be eligible to utilise the University’s Disability Leave Policy, which entitles them to up to six weeks paid leave for disability related appointments and absences.

The University will consider; any alternative roles at the University, retraining, demotion or any other reasonable workplace adjustments. If these prove impracticable or unsuccessful, the University may consider termination of employment as an outcome.

Normally, formal action will not be considered until all of the University’s other policies and processes have been exhausted, such as the Sickness Absence Policy.

  1. Ill Health Retirement

It is usual practice for the University to explore the possibility of ill-health retirement with the employee prior to considering termination of employment on the grounds of capability.

It is always the University’s aim to help an employee back to work after a long illness. However, there will be rare occasions where there is no prospect of a return to work in a reasonable time period. In such instances, where OH believes there is no prospect of a return before retirement, they may recommend early retirement on the grounds of ill-health, following information received from the employee’s GP and/ or specialist. The final decision on whether ill-health retirement is granted rests with the appropriate pension scheme. Details relating to the Scottish Teachers Superannuation Scheme and the Lothian Pension Fund can be found on the HR intranet.

Where an application for ill-health retirement is accepted, the pension scheme and the University will confirm this in writing.

Ill-health retirement can only be considered if an employee is a member of the University’s Pension Schemes.

5.Formal Process

If the University considers that the employee is unlikely to return to their role or if an appropriate suitable alternative role cannot be identified within a reasonable timeframe, it may convene a formal capability dismissal level hearing.

The decision to commence a formal capability process will be made by the relevant Line Manager, in consultation with their HR Client Partner and based on all the evidence available at the time, including medical evidence.

Once the formal process has commenced, employees have the right to be accompanied to all formal meetings. Employees can be accompanied by a work colleague or Trade Union representative.

5.1 Documentation / Evidence

If the ill-health retirement process is exhausted and not granted, the University will consider the evidence availableas to whether an improvement in the employee's medical condition is likely.

This evidence may include:

  • Up to date medical informationfrom the employee’s GP.
  • Up to date information from the University’s OHprovider.
  • Where there is evidence that an individual will not be able to sustain regular and effective service in the longer term as a result of a recurring health condition(s).
  • Where the Dean of School/ Director of Service,in consultation with the staff member has exhausted considerations of all reasonable adjustments which might facilitate a return to work, for example, reduction in working hours/changes in working pattern and provision of specialist equipment.
  • Where redeployment to a suitable alternative role has been exhausted and deemed not possible.

In the event that the employee does not provide the information sought by the Universityi.e. refuses to grant permission for a GP report, the University will proceed on the basis of the information that is available.

5.2 Invitation to a Capability Hearing

The employee will be invited to attend a formal capability dismissal level hearing.

The employee will be given at least 5 working days’ notice of a capability hearing from the date of receipt of the invitation letter (this should be assumed to be the day after the letter was sent due to all employee relations letters being sent special delivery).

All evidence / documentation will be provided to the employee before the meeting along with their invite letter.

The employee’s invite letter will include information aboutthe potential outcome of the meetingbeing a termination of employment on the grounds of ill health capability.

5.3 Attendance and Right of Delay

Attendance at the hearing held must be prioritised (the employee and representative’s line managers will make arrangements to enable this). If the representative cannot make the meeting, it will be rescheduled once. If the manager or employee are unable to attend a scheduled meeting / hearing, for a reason that was not reasonably foreseeable at the time of the arrangements, as much notice as possible must be given and the meeting must be rearranged without unreasonable delay. The employee and manager have the opportunity to re-schedule once only, unless evidence of extenuating circumstances is provided. If the employee fails to attend a re-scheduled hearing, the hearing may take place in their absence.

Where applicable an appointment with the University’s Occupational Health Adviser / Practitioner will be arranged to confirm the fitness of the employee to attend a capability hearing.

5.4 Capability Hearing

The capability hearing panel will be constituted by two Grade 8 or above Senior Managers.

A HR Client Partner will be in attendance to offer procedural advice and a HR Adviser will be in attendance to take notes.

Both the Line Manager and employee will be present and be given the opportunity to present their cases. Therefore, the Line Manager will receive a copy of the documentation in advance of the hearing, along with those chairing the Hearing.

At the meeting, the panel will consider the matter fully, including the recommendations made in any medical reports or associated paperwork and consider when deciding their outcome:

  • The nature of the illness and prognosis based on the information available
  • The likelihood and timing of a return to work
  • If the employee is likely to be disabled in terms of the Equality Act 2010 and whether there are any reasonable adjustments that would allow the employee to return to their role.
  • If the employee is not able to return to their role, whetherthere are any suitable alternative roles/duties.
  • If a further medical report is necessary
  • The effect of continued absence on the efficient operation of the department
  • The staff member’s representations on the matter
  • Whether termination of employment is an appropriate outcome
  • Decision

Written notification of the outcome of the meeting will be sent to the employeenormally within 5 working days. The letter will inform the employee of:

  • any proposed action to be taken by the employee
  • any action to be taken by the University
  • the right of appeal.

A potential outcome of the capability meeting may be termination of employment on the grounds of capability (full notice will be paid in these cases).

5.6 Appeals

Employees have the right to appeal the decision of the capability hearing. Employees must lodge their appeal, in writing within 10 working days of the date of receipt of the decision letter (this should be assumed to be the day after the letter was sent due to all employee relations letters being sent special delivery), clearly stating the reasons for their appeal and the name of any Trade Union representative or work colleague they will be accompanied by at the appeal hearing.

The appeal will be dealt with impartially by a panel of managerswho have not previously been involved in the case. The panel will be constituted by one member of ULT and one senior manager (Grade 8 or above) and normally dealt with within 10 working days of the appeal being received. There is only one level of appeal within the University and therefore, the decision made following the appeal hearing will be final.

At the appeal hearing the employee or their Trade Union representative (on behalf of the employee) will be invited first to present their grounds for appeal.

Where appropriate, the manager who made the decision at the capability hearing will be in attendance to present the management case and / or respond to any questions.

The managers hearing the appeal may decide to:

  • uphold the capability hearing decision
  • recommend other appropriate action
  • uphold the appeal

The decision will be confirmed in writing (normally) within 5 working days of the conclusion of the appeal hearing.

  1. Related Policies

Employee Assistance Programme

Sickness Absence Policy

Disciplinary Policy and Procedure

Disability Leave Policy

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Human Resources & Development 1 August 2015