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Policy Issue by Levone

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									                                                                                  Number
                                   Prison Service Instruction
                                                                                  19/2006


                               ATTENDANCE MANAGEMENT CAPABILITY HEARING

                                    PSO 8403 MANAGEMENT OF ATTENDANCE

                             10 July 2006                                  9 July 2007


                         CONTAINS MANDATORY INSTRUCTIONS

For Action                                    Monitored by

Area Managers, Governing Governors,           Personnel Management Group
Heads of Group, Area Personnel Advisers,
Heads of Personnel

For Information                               On authority of

All Staff                                     Prison Service Management Board

Contact Point

Ralph Hatton, Personnel Management Group,
Room 402, Cleland House. Tel. 020 7217 6304

Other Processes Affected

None


NOTES

This Instruction introduces changes to the final stages of the long-term sickness absence
procedures as set out in PSO 8403 issued in November 2002. These amended procedures will
ensure compliance with the statutory Dispute Resolution Procedures.


                                                                       Issued 26/06/06
PSI 19/2006                                                                               Page 1


Attendance Management Capability Hearing

Policy and Output

1.     This instruction introduces a mandatory hearing as part of the long-term sickness absence
procedures in order fully to comply with the requirements of the Statutory Dispute Resolution
Regulations. This new ‘Capability Hearing’ replaces the decision to issue an existing ‘intention to
dismiss’ letter which invited representations from the member of staff concerned against the
decision to dismiss (see paragraphs 8.10.2 to 8.10.4 of PSO 8403).

2.     With immediate effect, staff must now be offered the opportunity to put forward their case in
person at a hearing before any decision to dismiss on grounds of capability (unsatisfactory
attendance) can be made.

Impact and Resource Assessment

3.     These changes are necessary to comply fully with the statutory Dispute Resolution
Regulations. There will be a marginal resource impact in terms of staff time in attending the
Capability Hearing, although this is offset to an extent by not having to consider written
representations prior to reaching a final decision. Establishments and groups must also provide
appropriate facility time for staff representatives to attend Capability Hearings.

Mandatory action

4.     Section 8.10 of PSO 8403 must be replaced with the new section at Annex A

5.     The guidelines attached to this PSI must be inserted into PSO 8403 as Annex A.


Contact

6.     For further advice regarding this instruction please contact:

                  Ralph Hatton       020-7217-6304
                  Helen Redmond      020-7217-6845
                  Chris Dove         020-7217-6701




Gareth Hadley
Director of Personnel




Order ref. 8403                                                                 Issue date 26/06/06
PSI 19/2006                                                                                      Page 2

PSO 8403 : Replacement Section 8.10

8.10   Medical Inefficiency Termination

8.10.1 Medical inefficiency proceedings form part of the PCSPS rules. Termination of employment
       on the grounds of medical inefficiency may be appropriate when:

                 There is little prospect of a return to work but the medical retirement criteria are not
                  met.

                 The member of staff has refused medical retirement but the medical adviser is not
                  prepared to enforce medical retirement.

                 There is little prospect of staff giving regular and effective service in the foreseeable
                  future but the medical retirement criteria are not met.

       Mandatory Occupational Health (OH) Referral

8.10.2 If a member of staff has not returned to work after six months continuous absence,
       or where there are serious concerns at an earlier stage, an OH referral must be made.
       An OH referral at the six-month stage is mandatory. The member of staff must also
       be asked whether or not he/she wants to be considered for medical retirement at this
       stage. This referral must be an assessment by a consultant level Occupational
       Health Physician (referred to in the current Atos HMPS Procedure for Occupational
       Health Referrals as a ‘Level 5’ referral).

       Mandatory Capability Hearing

8.10.3 If, following an OH referral, there is no prospect of a return to work in the near future, and
       dismissal on grounds of capability (unsatisfactory attendance) is being considered, the
       member of staff concerned must first be invited to attend a Capability Hearing. The aim of
       the hearing is to ensure that the views of the affected member of staff are properly
       considered before any final decision is made on whether dismissal is the appropriate
       course of action.

8.10.4 As the hearing may involve consideration of the possibility of dismissal, the person
       responsible for making such decisions in the establishment or group in accordance with
       PSO 8403 should normally conduct the hearing.

8.10.5 This Capability Hearing is mandatory and required by procedures. Staff must be informed
       that they are entitled to be represented by a colleague or a union representative at the
       hearing. A short note confirming any decision taken following the hearing must be sent to
       the member of staff, together with information regarding the right to appeal if the decision is
       made to dismiss.




Order ref. 8403                                                                       Issue date 26/06/06
PSI 19/2006                                                                                Page 3

       Guidance

8.10.6 Further guidance on the implementation of this mandatory procedure is set out in Annex A
       to this PSO.

       Appeals

8.10.7 Appeals against OHMA not giving medical retirement should be sent to the OHMA. This
       does not affect the decision to terminate employment as the termination will be readjusted
       to medical retirement if the appeal is successful.

8.10.8 If the member of staff decides not to appeal, a letter confirming termination of employment
       and specifying the last day of service must be sent by the Governor, Head of Group/Unit as
       soon as possible.

8.10.9 Termination of Employment from the Service without compensation will normally apply
       where there is no serious underlying medical condition, the Disability Discrimination Act
       1995 does not apply and staff do not fit the criteria for medical retirement or termination of
       employment due to medical Inefficiency. Advice may be sought from PMG in these cases.




Order ref. 8403                                                                 Issue date 26/06/06
PSI 19/2006                                                                                    Page 4

                                                                                              ANNEX A

Long Term Sickness Absence: Capability Hearings


Guidance and constraints

1.     This Annex gives advice and guidance on Capability Hearings in cases of long-term
       sickness absence. The guidance below is suggested best practice, but is not formal policy.

2.     The requirement to hold a Capability Hearing prior to taking a decision whether or not to
       dismiss on the grounds of capability (unsatisfactory attendance) has become necessary to
       ensure we comply fully with the 2004 Dispute Resolution Regulations. A Capability Hearing
       is required when it becomes clear that a member of staff will not return to work in the
       foreseeable future or is unable to give regular and effective service in the duties of their
       grade under Civil Service guidelines (and described as capability in the ACAS Code).

What are the aims of the Capability Hearing and who should attend?

3.     The purpose of the Capability Hearing is to inform the decision whether or not the member
       of staff should continue to be employed, or dismissed on the grounds of capability
       (unsatisfactory attendance), based on the most recent medical evidence and the member
       of staff’s own representations at the hearing.

4.     Staff should be informed that it is their right to have the Capability Hearing and that they are
       required to make reasonable endeavours to attend the hearing. Staff should also be
       informed that they are entitled to be represented by a colleague or a union representative at
       the hearing. (Records should be kept of any failures to attend or agree to meetings and
       any refusal to attend should be recorded.)

Timing

5.     The Capability Hearing must take place before a final decision has been taken on the case.
       It will usually therefore take place shortly after receipt of the six-month (or subsequent) level
       5 OH referral report. At this stage. a decision should then be taken whether or not
       dismissal is a possibility. If dismissal is not contemplated at this stage, for example
       because the member of staff has indicated an intention to return to work within a
       reasonable period, the absence will require monitoring but no further immediate action
       need be taken. If, however, there has been no indication of a return to work in the
       foreseeable future and/or it seems unlikely that the member of staff can give regular and
       effective service, the member of staff should be informed that he/she may be dismissed on
       the grounds of capability (unsatisfactory attendance) but that no decision will be taken until
       he/she has had an opportunity to discuss this and put forward representations at a
       Capability Hearing.

Recurring sickness

6.     Recurring episodes of long-term sickness or other persistent medical condition affecting
       work may indicate that an employee has a permanent or long-term medical condition that
       will render them unable to give regular and effective service for the remainder of their
       career, as set out in the Attendance PSO. As with other cases of long-term sickness, such
       cases should be kept under regular review to establish options for support and long-term
       return to full duties. If it becomes clear that regular and effective service is not likely in the
       foreseeable future, consideration will be given for options such as ill-health retirement or
       medical inefficiency, which will then require a Capability Hearing to be held as with other
       cases of long-term sickness.


Order ref. 8403                                                                    Issue date 26/06/06
PSI 19/2006                                                                                  Page 5

The Capability Hearing

Location

7.     Locations for Capability Hearings are not prescribed, but it is generally assumed that where
       possible, they will be held within the establishment. Consideration should, though, be given
       to hold the hearing at another venue in exceptional circumstances.

Notice of hearing

8.     At least 10 days notice of the Capability Hearing should be given to the member of staff.
       The notice should refer to the fact that the member of staff has not returned to work and
       that accordingly, a formal Capability Hearing has been arranged to discuss the matter. The
       notice should state that it is possible that a decision to dismiss will be taken after the
       meeting.

9.     If the member of staff or his/her representative is unable to attend the initial hearing date,
       the hearing should be rearranged. If the reason for the delay is the fact that the
       representative is not available, the hearing should be rearranged for a time and date when
       the representative is available, provided it is at a reasonable time within 5 working days. If
       the reason for the delay is that the member of staff cannot attend, a further 10 days notice
       of a rearranged hearing date should be given. If the member of staff is not available to
       attend the rearranged date, the expectation is that the Capability Hearing will be conducted
       in their absence.

       Content of hearing

10.    While the Capability Hearing is required by law because dismissal is being contemplated by
       the employer, the hearing should be conducted on a reasonably informal basis. It is not
       intended to maintain a verbatim record or transcript of each meeting, but a note should be
       kept of the key points, and most importantly of any decisions made. A list of areas that may
       need to be discussed at the Capability Hearing is attached.

11.    The purpose of the hearing is to determine whether or not the member of staff will return to
       work in the near future and/or is capable of giving regular and effective service. Any
       representations made by the member of staff (or their representative) in this respect should
       be considered carefully. The option of medical retirement should be raised at the hearing if
       a referral has not already been made.

12.    The focus of the hearing should be on appropriate support and rehabilitation for the
       member of staff. Managers need to ensure that medical in confidence information is
       respected. Managers should be aware that it is not intended to discuss specific medical
       conditions, symptoms, treatment or medical options. It is also not intended to second-guess
       the duration of a length of illness or pressure staff to go back to work prematurely if they are
       not yet capable of doing so.

13.    Managers should be sensitive to the issue of medical and personal confidentiality and not
       embarrass or pressure staff that do not wish to disclose details of their illness. However, it
       will be entirely legitimate to talk in general terms about any appropriate support that can be
       offered and to discuss the management of sickness based on the occupational health or
       other reports available.

14.    Instead, the aim should be to consider the likely impact on work and the effects of any
       condition may have on the member of staff and their ability to continue work. The aim of the
       hearing is to come together, before final decisions are made in a particular case, to explore
       the options available for staff and management of the case and allow open discussion on
       case management options.

Order ref. 8403                                                                   Issue date 26/06/06
PSI 19/2006                                                                                  Page 6


Decision

15.    It is recommended that no decision is made until after the end of the hearing so that full
       consideration can be given to all of the representations made by the member of staff. A
       written decision should be sent to the member of staff as soon as practicable after the
       conclusion of the hearing. If the decision is to dismiss on the grounds of capability, the
       member of staff should be informed of the right to appeal the decision and the timescale
       within which any application for medical retirement should be made.

Medical Retirement

16.    If the member of staff has previously turned down consideration for medical retirement, the
       issue should again be raised at the Capability Hearing, and the right to be considered for
       medical retirement should be confirmed in any subsequent decision to dismiss. If the
       member of staff wants to be considered for medical retirement at this stage, this does not
       prevent dismissal on the grounds of capability. The decision to dismiss on the grounds of
       capability is separate from the issue as to whether the member of staff receives
       compensation for medical inefficiency or early retirement benefits on the grounds of
       medical retirement.       Medical retirement can be granted after dismissal takes effect
       (provided an application is made within three months of dismissal) and any compensation
       paid for medical inefficiency adjusted accordingly if medical retirement is granted.


Possible Areas to Explore at the Capability Hearing


 1.      Based on OH reports and any other available information is the prognosis for ill-health
         permanent/fluctuating/progressive/resolvable in the near future?
 2.      Does the condition affect normal day to day activities?
 3.      Is the employee disabled under the terms of the Disability Discrimination Act?
 4.      Is the employee fit for their post/job band at present?
 5.      Is there evidence of any work-related element to the health problem?
 6.      Does the condition impose risks to the safety of other employees?
 7.      What is the likely outcome of this ill-health episode?
 8.      Is there likely to be a residual impairment or re-occurrence of this condition? Is there a
         risk that the level of occurrence may jeopardise the ability of the employee to offer
         regular and effective service
 9.      Are other duties appropriate for this employee (with hours in relation to their current
         standard contracted hours)?
 10.     Is a gradual return to work recommended? If so, on what basis?
 11.     Are there other actions/adjustments that the employing unit could make to               help
         facilitate a return to work?
 12.     When is a return to work likely? Please outline the timescales anticipated.
 13.     Are there any support interventions or other actions that can be considered?

                 Musculo- Skeletal referral
                 Stress support counselling
                 Referral for Welfare support
                 Referral for further Occupational health
                 Consideration to be given to other third party medical services
                 Would the case benefit from mediation to resolve non-medical issues?




Order ref. 8403                                                                   Issue date 26/06/06
     PSI 19/2006                                                                                                   Page 7

                                                                                                                   Annex B:
     Flow Chart on process:

     MANAGEMENT OF ATTENDANCE
     AND STATUTORY PROCEDURES FOR DISMISSAL


                                   RECOMMENDED
                       First referral to OH made in good time
                       for first informal case review i.e. after
                                   6-8 weeks absence


                               Employee remains off work?


                                   YES                               NO
                                                                           Regular and effective service?

                                                                                  NO                    YES
                             Receive outcome of OH referral
                                                                                                      No further
                                                                                                      action
                                 RECOMMENDED
3 MONTHS               Case review to discuss outcome of first
(or earlier if          OHA referral and whether employee
concern)                         can return to work

                               Employee remains off work?

                                      YES            NO
                                                                           Regular and effective service?

                                    MANDATORY                                     NO                        YES
6 MONTHS                            Referral to OH.
(or earlier if           Employee is asked whether or not referral                                    No further
concern)                  should include consideration of medical                                     action
                                        retirement


                             Receive outcome of OH referral


                               Employee remains off work?

                                      YES                                         NO
                                                                           Regular and effective service?


                                                                               NO                           YES
                                RECOMMENDED
                        Case review to discuss outcome of                                             No further
                        OHA referral and whether employee                                             action
                         can return to work in near future

                              Return is possible/ imminent?



                                      NO                             YES

                                    MANDATORY                                Arrangements are put in place to
                       Discuss continuing absence at                         facilitate employee’s return to
                       Capability Hearing. Include warning                   work.
                       that possible outcome of process may
                       be dismissal.                                         Continue to monitor situation to
                                                                             ensure that employee does return.
     Order ref. 8403                                                                                  Issue date 26/06/06
PSI 19/2006                                                                               Page 8

Annex C: Template for note of the Capability Hearing Meeting


This information and practice document is issued in conjunction with PSI 19/2006 on Capability
Hearings. The pro-forma may be used to assist the case management process.


RECORD OF CAPABILITY HEARING WITH STAFF

This Pro-forma records a summary note of a meeting between the member of staff and the
representatives from the Establishment or Group. The meeting is intended to fully comply with the
requirements of the statutory Dispute Resolution Regulations. The note should confirm any
decision taken regarding their employment following the hearing and should be sent to the member
of staff. Guidance on conducting these procedures is set out in PSI 19/2006.

The purpose of the hearing is to determine whether or not the member of staff will return to work in
the near future and/or is capable of giving regular and effective service. Any representations made
by the member of staff (or their representative) in this respect should be considered carefully. The
note should relate only to the content of the meeting and is not meant to set out any decision made
after the meeting, which should be written separately.


RECORD OF A CAPABILITY HEARING REQUIRED BY THE STATUTORY DISPUTE
RESOLUTION REGULATIONS


Member of staff:
Establishment/HQ Group
Wing/Dept/Unit
Date


Meeting date:                                         Venue



Attendees:




Summary meeting notes: (The notes should record relevant key topics covered at the meeting,
but is not intended to be a verbatim transcript).




 (Please use additional pages if required)


Order ref. 8403                                                                 Issue date 26/06/06

								
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