ERIC ED378870: Coping with Incapability. Mendip Papers.

34 Pages·1993·0.65 MB·English

by  ERIC

DOCUMENT RESUME
HE 028 019
ED 378 870
Kedney, Bob; Saunders, Bob
AUTHOR
Coping with Incapability. Mendip Papers.
TITLE
Staff Coll., Bristol (England).
INSTITUTION
REPORT NO
MP-051
PUB DATE
93
NOTE
34p.
Staff College, Coombe Lodge, Blagdon, Bristol, BS18
AVAILABLE FROM
6RG, England, United Kingdom (5 British pounds).
Non-Classroom Use (055)
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Guides
EDRS PRICE MF01/PCO2 Plus Postage.
College Administration; *Competence; Court
DESCRIPTORS
Litigation; *Employees; Employer Employee
Relationship; *Faculty; Foreign Countries;
*Institutional Role; *Job Performance; *Personnel
Evaluation; Postsecondary Education
*United Kingdom
IDENTIFIERS
ABSTRACT
This paper examines methods that postsecondary
institutions can use to cope with faculty and staff incapability,
focusing on schools and practices in the United Kingdom. It first
discusses the nature and scale of faculty/staff incapability in the
United Kingdom, reviewing relevant court decisions. It then examines
administration responses to incapability that may result from
incompetence, short-term sickness, and long-term illness. The paper
suggests that administration responses to incapability need to
address the purpose of action, coverage, stages, time limits,
appeals, sanctions, and records. It also discusses the conduct of
review panels, investigations, and hearings, as well as the relevance
of communication, training, and collective bargaining agreements.
Appendices offer guidelines and procedures for decision-making in
determining incapability. (Contains 15 references.) (MDM)
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Reproductions supplied by EDRS are the best that can be made
*
from the original document.
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Coping with
incapability
The
Staff
College
Bob Kedney and
Bob Saunders
MP 051
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"PERMISSION TO REPRODUCE THIS
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U.S. DEPARTMENT OF EDUCATION
°Rice or Educational Research and Improvement
MATERIAL HAS BEEN GRANTED BY
-
EDUCATIONAL RESOURCES INFORMATION
CENTER !ERIC)
The Staff College
Crfrcis document has been reproduced as
received from the person or organization
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originating it
BEST COPY AVAILABLE
C Minor changes have been made to improve
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Points 01 view or opinions staled in this docu
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Coping with incapability
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Bob Kedney and Bob Saunders
The
Staff
College
MP 051
The views expressed in this Mendip Paper are those of the contributor(s).
They should not be taken to represent the policy of The Staff College.
About the authors
Bob Saunders, Staff Tutor, The Staff College
five years
From university, Bob went into industry as a sales office management trainee. He then spent
film.
in work study and O&M, culminating as head of work study in a factory producing photographic
Bob then spent two years in personnel as group training manager before joining the Engineering Employers'
consultant,
West of England Association where, over a 15 year period, he was successively a trainer,
senior consultant and deputy principal. After this he moved into FE to become a principal lecturer in
management. He joined The Staff College in 1988.
Bob Kedney, Associate Tutor, The Staff College
and
Has been the principal of one of the larger colleges of further and higher education, a senior officer
adviser to a number of local authorities and a head of department in a college and a secondary school.
He has served on a number of national bodies, including the Joint Study of Efficiency and the Burnham/
National Joint Council which deals with salaries and conditions of service. He currently teaches at The
Staff College and Sheffield City Polytechnic, is Education Adviser to Price Waterhouse, undertakes
consultancy work and writes on aspects of post-compulsory education.
Series edited and designed at The Staff College by Pippa Toogood and Susan Leather,
Publications Department, and produced by the Reprographics Department.
Published by The Staff College,
Coombe Lodge, Blagdon, Bristol BS18 6RG
Telephone [phone]
Fax [phone] or 463140 (Publications Department)
Registered with the Charity Commissioners
© The Staff College 1993
All rights are reserved. No part of this publication may be reproduced, stored in a retrieval
electrical, chemical, optical,
system, or transmitted, in any form or by any means, electronic,
photocopying, recording or otherwise, without the prior permission of the copyright owner.
4
Coping with incapability
crs
cao
Bob Kedney and Bob Saunders
Content:;
Introduction
Introduction
1
Quality is now one of the key issues in educational
thinking. Given the nature of further
education,
3
What is incapability?
this has to mean quality in the contribution
made
by people. Capability, or rather
any alleged lack of
4
The scale of the problem
it, is, therefore, a subject guaranteed
to raise interest
and debate. Until very recently, however,
the focus
5
Management responses
of that debate has tended to be
on intervention
rather than putting in place a coherent and
planned
5
Drawing up and reviewing
strategy to deal with the problem. Individual
case
college procedures
histories, or at least anecdotes, abound;
everyone,
it seems, has a story to tell of
a lecturer known to
10 The investigation:
them whose work is of an unacceptable
standard.
reviewing the evidence
It has been observed that
poor performance, left
11 The hearing: arriving
at a
undetected and unresponded to, is unlikely
to
decision
correct itself, but rather gets worse over time.
For
organisations that lay great stress
on public service,
12 Possible outcomes
responsiveness, educational standards
and the
pursuit of quality of learning opportunities,
it is
12 Timescales
perhaps somewhat surprising that little
attention
has been paid to quality problems
experienced by
13 Communication and
teaching staff themselves.
training
Explanations have in the past lain partly
in the
14 Sources of advice
division of responsibilities between
colleges and
local education authorities (LEAs),
partly in the
14 Collective agreements
lack of experience and reluctance of
managers to
handle uncertain and sensitive
matters. The
15 Conclusion
Education Reform Act 1988 responded
to the first
factor in that it shortened the chain of
responsibility;
16 References and
the Further and Higher Education
Act 1992
bibliography
completed this process by making the
college the
employer and placing the responsibility
clearly and
18 Appendices 1-6
solely with the college. The weakness of
managers
requires focused management development
to give
Mendip Papers
improve to the standard required, with
more understanding, clearer objectives and more
dismissal as very much the last resort.
readiness to take action. The task of drawing up
relevant personnel procedures and notes of
(Walton 1992)
guidance for managers can make a major
contribution. This should, however, be seen as
Taking such a position does not argue for tolerance
more than a technical exercise delegated to the
of the unacceptable, or over-long processes that
fail to serve the primary needs of students. Rather,
relevant specialist manager.
it seeks to set issues of capability into a framework
of other related management measures without
The development of procedures for dealing with
denying the need for prompt action. It will define
incapability can be regarded as a major initiative
and translate care and concern for people and
in its own right, or be set in a wider context.
quality into meaningful action in relation to
Capability procedures can be linked to other
individuals and the wider college community.
management policies involved with developments
such as improved selection and induction practices,
appraisal and the introduction of rules and
In developing step by step advice, consisting of a
procedure and associated notes for managers on
procedures related to absence and discipline. The
documents also need to be set in the context of,
how to address poor practice, there is a prime need
to identify acceptable standards of behaviour.
and related to, the other processes which form the
continuum of the four Ps of personnel
Setting expectations by personal example
management:. purpose (or mission); policies;
supported by an informal word in good time and
on a consistent basis will form a foundation that
procedures; and practice.
will do much to set and raise standards. This,
together with more formal advice and counselling,
The college mission statement should provide clear
will form the greater part of a college procedure
guidance on basic values through the use of key
but more overt action should also be part of the
words which need to be carried through into the
operation of the institution. In this context
repertoire of every line manager.
references to quality, effectiveness, support for
There can be a continuum of responses from
learning and caring, as well as efficiency and
merely clarifying peer group expectations from
setting high standards, can underpin the design of
informal through to more formal management
college staffing policies. The business or strategic
intervention that can lead eventually to dismissal.
development plan and its supporting programmes
should set out the relationships between public
statements of intent and their critical values. They
The documentation needs to set out clearly who is
charged with doing what. In general a guiding
will thus demonstrate how quality services are to
be provided within and by a caring community.
principle is likely to be to seek management action
They will clearly include personnel protocols and
as speedily and as close to the alleged problem as
is reasonable. The procedures should provide a
set down the college's expectations of its staff.
framework which makes clear who will do what
In practice, the initial motivation to sort out
and what is expected of them. They should confirm
capability procedures may be in response to
that the responsibility lies with the manager, who
specific examples of poor performance,
is under a duty to follow up problems with
particularly where there are long-standing
employees which cannot be resolved by normal
problems that need to be addressed. The primary
face-to-face discussion. The guidance should seek
focus will then be on how to deal with a worst
to indicate how the more formal stages of action
should be initiated. Advice can be given in
case scenario. While this can usefully serve as a
suprrting notes for managers on the key tests of
basis for testing ideas and proposals there is also a
reasonableness and the balance of probabilities
need to recognise the wider value of a capability
which should be underpin any recommendations
procedure. Walton, for example, indicates that:
or actions.
cases where management
In
all
genuinely believes an employee's
RrIerences have been made to procedures in the
performance is inadequate, the primary
p'ural in relation to incapability. This recognises
objective should be to get him or her to
that any failure to perform adequately by a member
Mendip Papers
2
approach. Very poor performance or long-term
of staff can be due to more than one cause. Where
absence from work is readily identifiable as a cause
the failure to perform is judged to be wilful (when
it is believed that the individual could but is
for serious concern for the individual, for college
management and for other staff and students. The
choosing not to behave reasonably) then the matter
should be dealt with under the college's
issues here are often not those of recognising the
disciplinary procedure. If, however, in the
problem, but rather of when and how best to act.
judgement of the responsible manager the
Short and intermittent absences can also have a
serious impact on the effective working of the
unacceptable performance is due to incapability,
it may be caused by either ill health or
college. The Employment Appeals Tribunal (EAT)
judgement in International Sports Co. Ltd. v
incompetence. Two separate but related procedures
are suggested here as ways of handling the
Thomson (1980) confirmed that this too can be
difficulties. Whether disciplinary, ill health or
grounds for fair dismissal. In summing up in that
case the panel indicated that dismissal should be
competence procedures are utilised in a particular
case, the final outcome could still be dismissal if
the outcome of a fair and reasonable process which
incorporates:
all else fails.
a fair review by the employer of the
What is incapability?
attendance record and the reasons for it;
Wilful misbehaviour is generally more easily
appropriate warnings, after the employee
recognised and handled than incapability, thus a
has been given an opportunity to make
failure to carry out simple administrative tasks or
representations; and
meet commonplace disciplinary rules may be used
as a basis for taking action. Poor timekeeping,
if there is no adequate improvement in the
incomplete registers, lax control of records of
attendance record, it is likely that in most
student work or the mishandling of cash or
cases the employer will be justified in
materials may be the preferred basis for
treating the persistent absences as sufficient
management action, but may in reality be related
reason for dismissing the employee.
to underlying incapability. It is clearly inequitable
(International Sports Co. Ltd. v Thomson
and unacceptable to treat colleagues with health
1980)
problems or a genuine lack of skill or knowledge
under a procedure designed for wilful misconduct.
Turning to issues of competence, or rather the lack
Having more than one procedure can, however,
thereof, the Court of Appeal, in reaching its
pose a problem for the line manager responsible
judgement in the case of Taylor v Alidair Ltd.
as a choice of route has to be made at an early
(1978) said that:
point in the process of investigation and action. It
Whenever a man is dismissed for
is necessary, though sometimes difficult, to
incapacity or incompetence it
is
determine whether the lack of adequate
sufficient that the employer honestly
performance is caused by misbehaviour, ill health
believes on reasonable grounds that the
or lack of ability. If no action is taken, the manager
man is incapable or incompetent. It is
could be personally open to a charge of
not necessary for the employer to prove
incapability; through a lack of care for the needs
that he is in fact capable or incompetent.
of students and other staff. It is always possible to
(And) the two questions are whether the
transfer, in the light of investigation of the facts
employers honestly and reasonably held
and circumstances, from one procedure to another.
a belief that the employee was not
A more sensitive and informed approach to
competent and whether there was a
problems can, therefore, be adopted if a college
reasonable ground for that belief.
has a full set of procedures.
(Taylor v Alidair Ltd. 1978)
As indicated, there has been a general feeling in
A year earlier the EAT recognised that it is
the past that it was easier to identify indiscipline
relatively simple to arrive at an assessment when
than incapability and therefore easier to respond
dealing with employees engaged in routine work.
through that route. Some guidance and support
But 'It is more difficult when one is dealing with
can, however, be found for a more discriminatory
FT]
Mendip Papers
7
neglecting students and staff both now and in the
such imponderables as the quality of management
which in the last resort can only be judged by
future.
those competent in the field,' (Cook v Thomas
A sound and clear procedure, supported by the
Linnell and Sons Ltd. 1977). It is, in part, to make
briefing and training of middle managers, should
such judgements that senior staff are employed in
colleges. Where competence is causing serious
help to resolve most issues well before dismissal
has to be considered. There has to be clear
concern (and is still believed to be a problem after
recognition and acceptance that the starting point
investigation and monitoring), action should follow
is not for a search for an external, universal
because incapability strikes at the heart of the
contract of employment, whether this is stated
definition of capability or adequate performance.
Rather, the need is for recognition by managers
explicitly in writing or not. Viscount Simonds, on
hearing Lister v Romford Ice and Cold Storage
that competence is situation specific and must take
account of an institution's mission. It is for the
Co. Ltd. in the Court of Appeal (1957), confirmed
managers to identify, set and support proper
that:
professional standards.
It is, in my opinion, clear that it was an
implied term of the contract that the
appellant would perform his duties with
The scale of the problem
proper care. (Lister v Romford Ice and
Cold Storage Co. Ltd. in the Court of
It has been argued that absenteeism, like a fungus,
Appeal 1957)
grows best in the dark, and the same can also be
said of incompetence. Unless the college has data
He went on to reinforce his view with a reference
and analyses for staff which parallel those for
in law which may help to put concerns over
setting and maintaining reasonable standards for
judgements of reasonable expectations of
students, little is likely to be known of the scale of
professional staff in colleges
context. He said:
absence and competence problems. Too often there
is little certainty, or even a general feel for the real
The proposition of law stated by Justice
scale of the college's problems. However, a little
Willes in Harmer v Cornelius (1858) has
illumination can go a long way towards showing
never been questioned: when a skilled
how the college can raise its standards.
labourer, he said, artisan or artist is
employed, there is on his part an implied
warranty that he is of skill reasonably
Some degree of guidance and comparison can be
competent to the task he undertakes.
drawn from examples in related fields of
employment. For example in its Notes for
A lack of capability is, therefore, a standard of
managers: absenteeism the Industrial Society
performance which, in the judgement of a
(1982) indicates that:
responsible manager, can no longer be tolerated.
Many studies show that absence is
It is that which you deem to be unreasonable. To
distributed unequally among any group
return to the case of Cook v Thomas Linnell and
of staff. A few people (five -10 per cent)
Sons Ltd. the EAT indicated that:
account for about half the total absence,
It is important that the operation of the
and a few never have any at all.
legislation in relation to unfair dismissal
impede employers
should
not
An investigation into absence levels in the police
efficient
unreasonably
the
in
found a loss of 1.1 million working days with a
management of their business, which
mean of 11.6 days per employee compared with
must be in the interest of all. (Cook v
seven or eight days in industry. The range,
Thomas Linnell and Sons Ltd. 1977)
however, was from an average of 19.5 days for
one force down to 7.1 days in another. A similar
pattern, including the spread, was found for local
While there is a need to act reasonably :n the
government officers in the London boroughs by
interests of the individual, to fail to take action
the Audit Commission. Turning to teachers in
clearly does not meet the interests of all. By settling
for unacceptable standards the college is
schools, the problems have led insurers to look
4
Mendip Papers
again at the terms of cover for absenteeism after
problems due to health and competence may be
limited in terms of simple volume. Perhaps of
Lloyds underwriters reported an estimated loss of
£50 million in 1990. Little research has been
greater importance, however, is the qualitative need
to care for individuals and to set and maintain
undertaken relating to FE colleges but a partial
review in one establishment found 13 lecturers
reasonable practices for students and colleagues.
had been absent for four or more weeks and in
It is difficult to see how an incorporated college
another just under two per cent of working time
can seriously aspire in its mission and strategies
to have concerns for people and educational
had been lost in single days on Mondays and
Fridays alone. Of the 198 days lost across
standards if it does not apply to itself a proper
consideration of its own pertbrmance. To do so
weekends over two teaching terms, six individuals
accounted for 53 days, and of these, three had
must demand the setting of adequate benchmarks
been absent on 39 Mondays and Fridays as single
for its staff and fair and reasonable procedures to
days.
ensure their delivery.
The financial costs and disruption to teaching and
Management responses
learning are clearly very important. So too are the
implications for the hidden curriculum of the
It has been argued that the most common causes
college and the values it espouses. Johnson's Law
of poor work ability are:
suggests that 'the number of minor illnesses among
employees is inversely proportional to the health
poor selection methods;
of the organisation'. It can be argued that a college
inadequate training;
concerned with the dissemination of knowlt n. ge
insufficient understanding of the role; and/
could be expected to know when its members of
or
staff are absent. As a caring employer as well as
a genuine lack of capacity.
one concerned to set and exemplify good standards
a college cannot afford not to know. Measurement
The design of procedures to deal with incapability
and analysis can thus be important first steps
have, therefore, to be set in context. Important as
towards illumination.
it is to look to improved recruitment and selection
this cannot address current difficulties, nor will it
Little seems to be known of levels of competence
cope with the impact of rapid change on existing
in colleges but in the absence of clear management
colleagues. Basing staff appraisal solely on the
action the normal curve of distribution could be
softer option of developmental outcomes is akin
expected to show examples of both excellence and
to regarding the appraisal process as the college
incapability. In a study of employees in the USA,
equivalent of the confessional. Both need to be
Steinmetz (1970) concluded that a quarter of the
seen as inter-relating with a range of human
workforce were judged to require improvement in
resource strategies which use on-going guidance
their performance. Of these the vast majority were
and informal advice to help reduce the need for
considered capable of improving but three per cent
more dramatic action. Setting standards and
of the workforce were defined as both unfit and
ensuring that they are known can form the basis of
unable to make improvement. The occasional
the informal 'word in time' which is a key tool of
subjective judgement in this country would seem
the effective manager. The strategies have to be
to suggest that opinion here is similar as references
seen as the essential early stages of a more formal
are sometimes made to severe problems relating
procedure which can lead, if improvement is not
to only one or two per cent of the workforce. In a
forthcoming, to transfer or dismissal.
period of change with rising numbers of non-
traditional students, new delivery methods, new
assessment techniques, rapid curriculum change
Drawing up and reviewing college
and the redeployment of staff from traditional areas
procedures
as a means of avoiding redundancy, it may be
possible that the proportion is currently somewhat
larger. This position is clearly exacerbated where
Not all colleges currently have procedures to guide
there is no lead from management to address
managers on how problems of staff absence and
problems at an early (or even a late) stage.
competence should be addressed. Those which do
may need to undertake revisions in the light of
Even when taken together. the scale of serious
Mendip Papers
5
it should ensure that individuals are given
corporate status. The notes which follow draw
an explanation for any action that is being
upon a number of documents and Staff College
imposed; and
courses in seeking to identify aspects which should
it should provide a right of appeal and
be considered. They are given here as three linked
specify the procedure to be followed.
checklists: the first (drawn from ACAS) addresses
key principles; the second gives a technical
Structure and content.
checklist of contents; and the third explores a range
of major issues which need to be addressed. While
In his book Industrial relations (1987) Green
the perspectives differ to some degree there are
details a series of elei,ents which can provide a
also points of overlap. They may, however, serve
framework for reviewing *he content of the college
to help staff who are involved in reviewing and
procedure. In all, it covers 13 elements, nine of
testing a new draft procedure.
which are identified here as being of particular
relevance to the design and review of college
Contained within these checklists are a number of
procedures to deal with absence/health and
key stages which are then explored further. They
include comments on the critical phase of
competence issues.
investigation which forms the foundation for
considering whether any further action is
1. Purpose/status: should cover who are the parties
necessary, and if it is for deciding what matters
to the document, the status of their discussions
should be considered at the formal hearing. The
and the date of the procedure. In particular it should
timescales for each stage and the options in terms
indicate whether discussions with the recognised
of outcomes open to college managers are of
trade unions have been based on consultation or
particular importance when considering allegations
negotiation and, if the discussions are on-going,
of incapability. They call for a balancing of factors
whether the draft is regarded as a management
in arriving at a reasonable decision.
document or a joint guide.
Key principles
2. Staff concerned: most colleges are moving from
the old local authority practice of having two or
The ACAS Code of practice 1: disciplinary
more procedures, each relating to a different group
practice and procedures in employment (ACAS
of staff and discussed with different trade unions,
1977) specifies a number of essential features of a
to a single policy and procedure. The scope needs
procedure which have been adopted and adapted
to be clearly stated.
here in the context of capability. They provide
critical starting points and a basis for testing the
3. Coverage: the procedure should also state
document when it has been developed:
clearly what it covers and identify any related
provisions. For example, if separate procedures
the procedure should be in writing;
are drawn up for staff discipline, absence,
it should specify to whom it applies;
competence and appraisal, these should be
it should provide for matters to be dealt
identified. It may also be helpful to indicate that
with (as) speedily (as is reasonable);
movement at an appropriate point in the review
it should indicate the actions which may be
from one procedure to another may be deemed
taken;
appropriate.
it should identify the levels of management
which have the authority to take various
4. Stages: the procedures can be expected to move
forms of action;
from the informal through to the more formal and
it should provide for individuals to be
will include investigation and an appeal hearing.
informed of the concerns made against them
The procedure should indicate who will be
and be given an opportunity to state their
empowered and accountable, for acting at each
case;
I the principle
stage. Account will have to be taker.
it should provide for individuals to have
of natural justice in that anyone participating at an
the right to be accompanied;
earlier stage should not be involved in decision-
it should ensure that action is not taken until
making at any subsequent phase.
the case has been investigated;
6
Mendip Papers
10