Employees have the right to be accompanied by a companion of their choice at the meetings detailed in this section. 

The outcome of each meeting/hearing should be confirmed to the employee in writing within 5 working days unless otherwise agreed with the individual. 

If the employee has been issued with a Certificate of Permanent Ill Health and is entitled to pension benefits, they should request an estimate of pension benefits directly from the Pensions Section (using the document below).  

Where an employee is too unwell to participate at a meeting/ hearing, they can choose to nominate a representative to attend on their behalf or to provide a written submission. If an employee's case is considered in their absence, a letter should be sent to them confirming the outcome of the meeting.

• The termination date will normally be the date of the informal meeting/ hearing.
• You must arrange for a 'Termination of Employment' form to be completed online as soon as possible (to stop any future payment of salary/wages).  
• On this you must indicate payments to be made in lieu of notice and outstanding annual leave as appropriate. The Managing Sickness Absence Policy gives guidance on calculating annual leave following sickness absence. 
• In addition, where applicable, you should ensure that the Pension Section is provided with a copy of the Certificate of Permanent Ill Health and notified of the termination date.
• Where relevant, ensure that the employee is referred to their professional body/ Scottish Ministers in line with that body's requirements. Contact hrhelpdesk@falkirk.gov.uk for more information.

An informal meeting to confirm termination of employment can be held in the following circumstances:

• Where a Level 1 or Level 2 Certificate of Permanent Ill Health has been issued, and the employee indicates that they accept this recommendation as they do not consider they will be fit to return to any form of work within Falkirk Council. An employee awarded ill health retirement at Level 2 may accept ill health retirement and retain the right to appeal against the decision that they do not meet the criteria for Level 1 retirement.
• When Occupational Health state that the employee is not expected to return to work in the foreseeable future, but a Certificate of Permanent Ill Health has not been issued because for example: the employee is not a member of the Local Government Pension Scheme, or is older than their state pension age. 
• For any other employee who does not dispute the facts of their case and who has previously agreed that dismissal from employment is appropriate. 

Before an informal meeting is arranged, the employee must be asked to confirm their agreement to attend this meeting rather than a formal hearing (letters can be downloaded from the Strategies, policies, procedures and guidance page on the Intranet). Approval for the meeting and, potential dismissal, must be given by the relevant Service Manager before it is arranged. 

If the employee prefers, the meeting can be held at their home.

Any decision to proceed with an informal meeting rather than formal capability hearing would not impact on consideration of any pension appeal submitted by the employee.

If during the course of the informal meeting, it becomes apparent that the employee disputes the termination of their employment, this should be discussed with them.

The chair of a formal hearing will be a Service Manager or above. The Director of Education Services (or nominated representative) will chair hearings for teachers. In addition, before convening a hearing which may lead to dismissal in cases involving performance issues relating to a Teacher, the Director of Education Services must ensure that the Code of Practice on Competence has been followed by the manager who has been  implementing the Capability Policy. Where a dismissal of a Teacher is being considered, the Teacher must be informed in writing that they may ask the Council to formally notify  their professional association of this.

On considering a capability report you may decide that the capability process has not been managed to the point that a hearing should be  convened. You may therefore ask for the employee's case to be managed further and for an updated capability report to be provided (if appropriate), once this has been done. For example, where a redeployment search has not been implemented and there is no apparent reason for this not having been done.  

The hearing should be arranged as soon as possible after the conclusion of the capability process.

You should ensure that the management representative and an HR adviser are available to attend the hearing and, where applicable, that suitable accommodation is available. In complex cases, you may make a specific request for a legal representative to be in attendance at the hearing to provide advice and support where necessary.

The employee concerned should be given at least 5 working days' notice in writing of the hearing. The hearing invite letter (which can be downloaded from the Strategies, policies, procedures and guidance page on the Intranet) should include the following information: 

• hearing arrangements (eg time, date, venue)
• the fact it will be a formal capability hearing held under the Capability Policy
• the nature of the aspect of capability to be considered with details of the concern
• that dismissal is a possible outcome of the hearing
• the composition of the hearing panel and who will present Management's case
• the right to submit documentation in response at least 3 working days in advance to the chairperson of the hearing
• the right to be accompanied at the hearing by a companion of their choice.

You must ensure that papers to be referred to in support of Management's case are provided to the employee and any hearing adviser in advance of the hearing. These would normally be sent to the employee with the hearing invite letter.

You should also distribute any papers submitted by the employee to the Management Representative and any hearing adviser in advance of the hearing.

Employees should be encouraged to make every effort to attend the hearing. If however they or their chosen companion are unable to attend, arrangements should be made for the hearing to be convened within 5 days of the original date. If the hearing is being rescheduled because their chosen companion is still unavailable, unless there are exceptional circumstances, the employee will be expected to make alternative arrangements to be accompanied at the rescheduled hearing.

The Capability Hearings chairperson's checklist can be used to assist in this process. This should be retained until the conclusion of the capability procedure as a summary of the hearing process.

Adjournments can be requested by any party in the hearing at any time. It is however for you, as chairperson to decide when an adjournment will be granted.

Both the employee (and their companion) and the Management Representative should be invited into the hearing at the same time.

Welcome everyone. Introduce those present, explaining everyone's role.

If the employee is not accompanied:

• Ensure they are aware of this right and check if they wish to be accompanied before the hearing begins. If they confirm they are happy to go ahead without being accompanied, record this and proceed with the hearing.
• If the employee advises that they want to be accompanied, the hearing may be adjourned. The employee should be advised that the hearing may be rescheduled to another time which falls within 5 working days of the original date in order to allow the companion to attend.

If the employee is accompanied, check who will present their case – ie the employee or their companion.

Once the hearing proceeds, the purpose of the hearing should be confirmed and the format should be clearly explained. Advise that adjournments can be requested at any time.

The hearing format is as follows:

Management Representative presents their case

Management will refer to the capability report and provide a summary of the management of the employee's case.

The employee or their companion will then be given the opportunity to ask questions.

Don't allow long rambling statements to be made before the question is asked. Don't allow both the employee and the companion to ask questions – it should normally be one or other. You must, however, ensure fairness and consistency throughout the hearing.

Once the employee has finished asking questions, you are entitled to ask questions. Remember you are going to make the final decision, so make sure you are clear about what is being said. Your decision is going to be based solely upon what is said during the course of the hearing and upon any written evidence provided.

Any advisers to the chair will then have the opportunity to ask questions for the purpose of seeking clarity.

Employee/their companion present their case

Once the Management Representative has fully explained their case, it is the turn of the employee or their companion to present their case.

The Management Representative will then be afforded the opportunity to ask questions as will the Chairperson as noted above.

Summaries

Once everyone has been given the opportunity to state their case, the hearing is concluded by asking first the Management Representative and then the employee/ their companion to offer a brief summary of their respective cases. There should be no new evidence at this stage.

Reconvening the hearing

Ask the employee if they believe they have been given a fair and reasonable opportunity to present their case. If the response is "no" then ask the employee to explain why they believe this. If the procedures have been followed this is unlikely to happen. If it does, deal with the point if possible. There is normally no opportunity to rehear the case or allow new/further information to be stated unless in exceptional cases. The position should be noted and the concern taken into account in reaching your decision.

Adjourn to consider the cases and to reach your decision.

If further information is required then it may be appropriate for you to advise that you will give your decision in writing rather than reconvene for this purpose.

Reconvening the hearing

Clearly advise the employee of your decision (see potential outcomes of Capability Hearing. Advise the employee of the reasons why you have come to your decision and, where appropriate, what changes in behaviour are expected of them and timescales associated with this.  It must be advised that if the standards are not met within the specified timescales then a further hearing will be convened with the possibility of dismissal considered.

Where you are taking a decision to dismiss the employee they must be advised that termination will take effect from the date of the hearing and that they will be entitled to receive payment in lieu of notice and any outstanding annual leave payments.

Where relevant, advise the employee that they will be referred to their professional body/ Scottish Ministers in line with that body's requirements. Contact hrhelpdesk@falkirk.gov.uk for more information.

Ensure that the employee is aware of their right to appeal against your decision. Advise that any appeal must be made to the Chief Governance Officer within 10 working days of receiving the written confirmation of your decision.

As a final point thank everyone for their attendance.

Send the employee a written outcome of the hearing within 5 working days.

The main options open to you on consideration of the facts of the case are: 

• redeployment
• seek further information
• allow additional time for improvement
• dismissal

In most cases redeployment will have been considered, and the appropriate process undertaken, prior to the capability hearing.  If this has not been the case (eg, if the employee was previously unwilling to participate in a search but has since changed their mind), you should make an assessment as to whether it is appropriate to allow time for a search to now be undertaken. If so, you should adjourn the hearing to allow for the Redeployment Policy to be implemented.

If a suitable redeployment opportunity is found you should write to confirm that the capability hearing process is concluded.

Where no redeployment opportunity is identified, you should reconvene the hearing.

If you consider that the facts presented do not warrant the employee being dismissed on the grounds of capability, it is open to you to adjourn the hearing for a period of time in order to: 

• give the employee an additional opportunity to improve their performance/attendance to meet further reasonable agreed targets within a defined timescale
• allow for additional information/clarification to be obtained in respect of points raised at the hearing, or
• trial/assess reasonable adjustments which may be appropriate. 

In any of the above circumstances you should state the reasons for the adjournment clearly to those present at the hearing and then confirm these in writing to the employee. The letter issued should note: the purpose of this adjournment, any targets which require to be met, how these will be measured and the timescales which have been agreed for review. Details of the support to be provided to the employee should also be documented.

The management representative should be asked to give a written update on the employee's position at the review date. Having considered this information, you have the option to:

• end the capability process without reconvening the hearing (for example in a case of persistent absence where the employee's attendance has improved to an acceptable level),
• extend the period of adjournment before deciding which action to take, or;
• reconvene the hearing to give the employee the chance to respond to management's update.

If the capability process is to be concluded without being reconvened - you should write to the employee (letter can be downloaded from the Strategies, policies, procedures and guidance page on the Intranet) to confirm your decision and why. You may also want to note expectations for future performance. Human Resources would be able to advise as appropriate.

If the period of adjournment is to be extended - you should confirm this decision to the employee in writing (letter can be downloaded from the Strategies, policies, procedures and guidance page on the Intranet). The reasons for this decision and the new review date should be stated in the letter. Any action expected of the employee during this time (eg to continue to maintain an acceptable level of attendance) should also be noted in the letter.

If the hearing is reconvened - you should assess the additional information obtained, or the details of the performance of the employee during the period of adjournment. You would then seek the employee's view of the information presented before taking a decision on the most appropriate course of action. It may be the case that there is an improvement in performance, or additional information is obtained which leads you to conclude that dismissal is not appropriate. In such circumstances you should confirm your decision in writing to the employee (letter can be downloaded from the Strategies, policies, procedures and guidance page on the Intranet), detailing the reasons for coming to this conclusion. You should also confirm the required level of performance expected in future. 

If no additional evidence is provided to the contrary, or the required improvement in the employee's performance has not been attained during the monitoring, the reconvened hearing will normally result in the employee being dismissed on the grounds of capability.

Appeals against dismissal should be made on the appeal form to the Chief Governance Officer within 10 working days of receipt of the letter confirming the decision to dismiss.

Appeals against dismissal will be heard by the Appeals Committee of the Council who will be supported by legal and HR advisers. The chair of the capability hearing will present management's case to the committee.

As chair of the capability hearing you are responsible for preparing the report for the Appeals Committee (contact hrhelpdesk@falkirk.gov.uk for this template) and for giving Governance the relevant core documents. HR can advise as appropriate.

The appeal will normally be heard within 30 working days of the submission of the appeal. The employee has no further internal right of appeal beyond this hearing.