Capability Process in pregnancy

[SpottedTiger]

I currently work in the NHS, over the last 2 years I have had 2 long periods of sickness the first 3 months and the second 5 months. During the first sickness OH and HR were not formally involved although I accessed support from OH counsellor and psychologist . On return my manager used a very graded approach over a 12 month period and reported she was happy with my progress throughout that time. I returned fully to my previous role with a couple of reasonable adjustments.

The second period of sickness has been managed by a different (less experienced) manager. HR and OH have been formally involved this time. HR mentioned a 3 month timeframe for the phased return this time verbally, but this was not put in writing and the first manager told me not to worry as they didn't stick to HR timescales and it would take as long as I needed it to for me to return as before. A couple of weeks in I realised that this manager was pushing me much faster than the first one (who actually slowed me down) but felt that I was managing OK. 2 weeks in to the phased return I discovered I am pregnant with a much longed for DC1. I have struggled with sickness and exhaustion, but forced myself into work (plastic bags and all) as I didn't feel I could take sick leave so soon. Although I have struggled I have been consistently increasing my hours and duties at a faster pace than my previous phased return I have had weekly meetings with my manager to discuss progress and he had not raised any concerns. My direct supervisor has been very supportive and has not allowed me to return to my full duties as she felt it was too soon and I wasn't ready. 2 weeks ago my manager, supervisor and I met for an update and we explained that I was continuing to increase my duties but my supervisor did not feel that I was ready for my full role yet. At this point my manager said that as I was not yet working at my pay grade (after 3 months when my previous return was 12 months) he would need to speak to HR about what action to take and if he was able to take action whilst I was pregnant. I was shocked as I had thought I was progressing at the required rate and had had no indication otherwise. Over the last 2 weeks my supervisor has been on leave and I have been deputising for her along with another colleague of the same grade. There have been days when I have been soley responsible for the whole team. I'm aware that I am not working at my normal (high) level yet, but felt pleased with how I have been managing and feel that I've done a good job and been working at my pay grade. (I've asked a couple of collegues for honest feedback on my performance and they agree) However this week my manager has announced that as I am not working at my pay grade he wants me to step down. If I don't do so voluntarily he will be going down the capability route.

I'm completely shocked and devastated. I've been in my current role 11 years and always had very positive feedback at appraisals. I love my job and feel I am very good at it. Both my supervisor and manager have stated that when well I am excellent at it. I also feel it's unfair of him to be judging my performance during the period where I have been struggling so much with my pregnancy. Unfortunately I've downplayed how awful I've felt as I don't like complaining about this longed for pregnancy.

So my questions are:

Is it fair to judge my performance when there have been additional pregnancy related issues impacting on it.

How long does the capability process take? Will they be able to complete it before I go on Mat leave? I was planning for Mid March, but could start in Jan if I felt I had to.

What happens if I go off sick or on Mat leave during the process?

I'm also covered under the equality act for my disability and as my husband's carer if that makes any difference and the reasonable adjustments agreed have not yet all been put in place (still waiting for equipment ordered to help me do my job more easily)

Sorry that's so long, needed to get it off my chest.

They need to make the adjustments before they can fairly judge your performance. Once the adjustments are in place, they need to start looking at your performance from then, not retrospectively.

I suspect your manager knows this, so has threatened you with capability to see if you’ll go quietly. Don’t! You’ll be on mat leave soon enough won’t you. Stick it out until then. Don’t be bullied out. Tell someone he’s said that (pref. In HR but definitely in your team). Don’t bear it quietly.

I bet your manager thinks they’re being really clever - they’re not.

Where I work (public sector) capability takes a really long time, usually about a year to complete from start to end.

Sick leave whilst pregnant can’t be counted towards trigger points for absence management procedures. Capability and absence management procedures are separate - one is saying you’re not here enough and we can’t support that, the other is saying you’re not doing your job as required.

In two years you've had eight months off and it took a year for you to get back first time but then you went off again? Do you mean actually off work or just on a return for those eight months?

Tbh from a business point of view they probably feel that they can't sustain this rate of progress - however if they haven't put anything in place to support you then they are out of order.

Are you saying you were on a reduced hours but paid in full for 12 months after the first time off but went off again within months?

I've never heard of such a long phased return and it's not surprising that considering you still ended up off sick for even a longer period they are questioning that time frame. How long has the phase return lasted this time?

My first thought reading your OP is that you've had an awful lot of absenteeism. I recognise it isn't your fault, but it does mean the NHS is having to jump through all the hoops due to legislation, and it does seem like they've tried their best to support you.

It's difficult to measure your performance in any meaningful or sustainable way simply because you haven't had sufficient time back in your role to obtain consistent measures of performance.

I would focus on highlighting their agreement to getting your reasonable adjustments in place and also mentioning the negative impact on your performance of not having the RA, plus your motivation to get back to good performance at the earliest time.

If you're signed up with UNISON contact them for some support and advice

I would try and summarise all the issues in writing and get union support. I agree you are probably performing below par due to your pregnancy and completely understand you wanting to minimise it. Don’t agree to step down, not only is this blackmail but will affect your maternity pay.

So you had 3 months off, 12 months phased return to full duties; 5 months off 2 weeks return, discovery of pregnancy, and a further 10 weeks of working at reduced performance alongside pregnancy? I presume that you are about 16 weeks pregnant now?

It is all very complicated. I expect the best thing will be for Occupational Health to be contacted, so that they can do a report. They may well be able to say that you are doing well, and that you are limited more by your pregnancy then your previous difficulties now. In which case you will need to have reasonable adjustments until maternity leave.

It does sound like you have spent a long time below your pay grade though, so you will need to engage with your manager and not just assume that they can't do anything. It isn't always the case.

Thanks for the responses. I appreciate that I have had a huge amount of sickness and up until this point my managers have been amazingly supportive. I would have been off for a lot longer if they hadn't been able to accommodate this however their take was that they would rather have me in work doing work doing what I could than off work so my initial sick leave was much shorter than it would otherwise have been. I also can understand from my employers perspective that my pregnancy is badly timed, we were waiting for fertility treatment when baby took us by surprise and has certainly made things more complicated from a work perspective. My managers are generally fantastic and are telling me HR are forcing their hands now.

I have a meeting with my union rep next week to discuss everything. And have asked to be refered back to OH for their opinion. I've drawn up a timeline of this return and included my pregnancy symptoms and health alongside my hours and duties which to me demonstrates that my pregnancy is affecting my performance more than my health issues with a notable jump in what I can manage at 14 weeks when the sickness started to settle even though my health problems were flaring up at this point.

I'm planning on getting my job description out and looking at how I can evidence that I am now back to working at that level. I'm also going to set out in writing my main issues with the process.

1. Reasonable adjustments not yet all in place.
2. Clear expectations with timescales were not set out for my return.
3. I've not been allowed to take on certain aspects of my job so haven't had the opportunity to demonstrate that I can do them. (I'm assuming my supervisor was also unaware of the timescale we were working to or she would have addressed this with me.)
4. It's unfair to judge my performance based on performance whilst struggling with my pregnancy .

I also think he was assuming I would be open to the idea or even relieved as he seemed surprised that I did not agree to go voluntarily. If capability is a long process there seems little point in putting us both through the stress of it when I could potentially start my Mat leave in Jan. I would rather wait until March, both for myself but also for my team as this will mean that 2 other staff will have returned from Mat leave before I take mine.

Sounds like you are being very proactive which is only going to help.

All agreed reasonable adjustments need to be in place and have had time to embed before they can start looking at capability. They can't count your absence now you're pregnant but I would think very carefully about if you will continue to have such a high rate of it if you returned from maternity.

I'm certainly hoping that I won't have any more long periods of sickness after Mat leave and that my condition is now under control and will be more manageable.

I know capability and absence are two different issues, but can a disability related absence be included in absence triggers? I was under the impression that it couldn’t.

OP, have you chatted this through with ACAS? I’ve found them to be very helpful over the years.

Apologies if my post inferred that. The app doesn't let me paragraph. They are indeed different things. Having a disability should allow you more tolerance towards sickness absence as a reasonable adjustment. BUT that does not mean it is unrestricted. If the level of absence is having an unreasonable detrimental impact on the running of the business, they can indeed end the employment. As always there are specific processes for this and it takes quite a while.

Thanks trip- it was a bit of a “by the by” but only came to mind because pregnancy absence isn’t taken into account and I wasn’t sure if disability related was the same. Sorry to derail.

It sounds like a really tricky situation

OP, can you tell us more about the reasons you were off, it will help us advise? Capability and absence are not separate and most employers cover them under the same capability policy, as this is one of the 5 legal reasons to dismiss if that’s what it comes to. To be honest, you have barely been effective for nearly two years and I am not surprised they are getting fed up, 12 months phased return is way too long and to me shows you were not fit to come back in the first place. Could you not reduce your hours to help cope with your illness? Agree with others that all RA should be put in place and realistically even if they commence capability it will not be finalised before you go on ML. Beware, however, they can enforce your commencing ML early if your sickness is deemed to be pregnancy related.

Sorry OP, forgot to congratulate you on pregnancy, at the end of the day this is more important than anything!

If the reasonable adjustments agreed haven't been put in place, it isn't possible to judge your performance. If you could perform at your previous level without the adjustments, they wouldn't be needed.

Your points sound very reasonable, and it's a great idea to go through your job description identifying what you are doing, what you can't do until the agreed adjustments are put in place and what you are working towards. Any decent union rep should be able to take this up.

Those posters saying that OP has had a lot of time off.... yes, she has but I don't expect that she wanted to develop a disability or be incapacitated by it. Yes, sickness absence is inconvenient for the workplace but given that the workplace isn't yet personed by robots, it's sort of to be expected that the humans that work there will encounter some problems, illnesses, accidents, tragedies, unexpected circumstances at some point in their lives.

"Beware, however, they can enforce your commencing ML early if your sickness is deemed to be pregnancy related."

Only at 36 weeks or later. The OP says she is 14 weeks, so there are another 22 weeks to get through, where the manager is already saying that the OP is not up to standard and the OP feels she is doing well. Even if the OP went as soon as possible at 29 weeks, there would be 15 weeks left to work.