Where an employee’s performance, conduct or attendance is failing to meet required standards and they deny that there is an alcohol or substance misuse problem or refuse to engage in any treatment/support programme, the issue should be taken through the Council’s work performance, discipline or attendance procedure as appropriate. If they continue to fail to meet required standards the outcome may ultimately be dismissal in line with the provisions of the relevant policy.
Where an employee is deemed unable to continue in, or return to, their substantive post, or a suitable alternative post, irrespective of whether they have acknowledged that they have a problem and have attempted to comply with treatment/support provisions, the Council will consider whether it is appropriate to call the employee to a capability hearing to consider dismissal on grounds of lack of capability.
Where all reasonable efforts to support the employee in respect of their alcohol or substance misuse problem have been taken and proved unsuccessful and they have failed to achieve a satisfactory level of performance or attendance, consideration may be given to addressing the matter at a capability hearing to contemplate termination of employment.
Before making this decision an up-to-date occupational health report should be obtained detailing the progress of any treatment/support programme and to confirm whether redeployment could be considered where the manager determines this to be appropriate and feasible in the circumstances of the case. If these options are not possible the manager will meet with the employee to review the situation and advise that they are considering recommending that the matter be progressed to a capability hearing. The employee will be given the opportunity at this meeting to make any points that they wish to be considered. The manager will then decide, following discussion with People and Organisation, whether to progress to a capability hearing or whether another course of action will be followed.
Arranging the Hearing
If a capability hearing is being held this should be chaired by a senior manager at third tier level or above (Director in the case of a teacher) with no prior involvement in the case. An up-to-date occupational health report will be available at the hearing.
The employee will be provided with written notification of the hearing, which will detail the grounds for calling them to the hearing and that a possible outcome may be dismissal on grounds of capability. The employee will have the right to be accompanied at the hearing by a trade union representative or work colleague of their choice but does not have the right to be accompanied by a legal practitioner, partner or spouse.
An HR Adviser must accompany the senior manager at the hearing.
It is recommended that the employee is given at least 5 working days’ notice in writing of being called to the hearing. The letter must state that a possible outcome of the hearing may be dismissal on grounds of lack of capability but that all other reasonable options as an alternative to dismissal will be considered before any decision is made at the hearing.
Please see here a model letter for calling employee to the hearing.
This gives details of how the hearing should be conducted and advises the employee that they must take all reasonable steps to attend the hearing and if they fail to do so without a good and sufficient reason, then it is be likely that the hearing will proceed and a decision made in their absence based on the available information.
The Capability Hearing
At the hearing the Chair will inform the employee that they appear to have failed to successfully overcome their alcohol or substance misuse problem and achieve the necessary improvements in their performance or attendance, with reference being made to the contents of the latest occupational health report and other previous, relevant reports.
The chair should conduct the hearing by the following steps:-
At the end of the hearing an adjournment will occur. During the adjournment all of the relevant issues that emerged from the hearing will be considered by the chair and a decision arrived at as to whether dismissal on grounds of lack of capability is appropriate or whether another course of action can be identified as an alternative to dismissal.
Following the adjournment, the decision will be relayed to the employee along with the reason(s) for taking the decision. This should be undertaken within 24 hours of the hearing and normally after a short adjournment following the end of the hearing. If the decision is to dismiss on grounds of lack of capability this will be confirmed in writing to the employee, together with the right to appeal, using the standard letter.
Please view here a model letter dismissal on grounds of capability
If further information is required before a decision can be made, then the hearing will normally be adjourned and reconvened once the information has been gathered, with the above process followed thereafter.
The employee has the right of appeal against dismissal within 10 days of receipt of written notification. They can choose for the appeal to be heard by either a senior manager of the Council, (usually more senior than the manager who took the decision to dismiss) who has had no prior involvement in the case, or by the ‘Appeals by Employees Committee’ (or equivalent in the case of teachers and chief officials).
Please view here a model letter inviting employee to hearing.
After the appeal hearing, the employee will be informed in writing of the decision.
Please view here a model letter informing employee of appeal decision.
Matters to Consider
Before taking a decision to dismiss an employee on grounds of capability, the manager should consider the following issues:-
- Has all reasonable support been given to the employee to address their substance misuse problem to improve their performance or attendance?
- Has there been discussion with the employee about their substance misuse problem and the affect this has had on their work performance or attendance and the potential implications for their employment with the Council?
- Has suitable alternative work been considered where this is appropriate and feasible?
- Would it be reasonable to allow the employee any further time for rehabilitation to occur, bearing in mind what has occurred to date, the interests of the Council, the position the employee holds and the need to be fair to the employee?
- Has a report been sought from the occupational health service about the employee’s condition and their future prospects?
- Has the ‘Managing Substance Misuse’ policy/procedure been followed?
- Have all matters relevant to the case been sufficiently examined and considered at the hearing?
- Is there a genuine belief that the circumstances of the case render satisfactory fulfilment of the employment contract in future unlikely and are there reasonable grounds to sustain that belief?
- Has the employee been consulted on the final step of the procedure and given the opportunity to put forward any final points for consideration before deciding whether to dismiss?
- If the decision is to dismiss, is this within the band of reasonable responses of a reasonable employer in the circumstances
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