This blog (originally published in February 2013) is being re-posted following our WordPress account being hacked, resulting in the loss of all our blogs prior to June 2017.
In Part 1 of ‘How to get rid of a poor performer in 50 tweets’ I explored some tactics for avoiding getting as far as thinking about having to dismiss someone who is not performing.
Parting company with someone is expensive and time consuming, but nonetheless, sometimes necessary.
In the UK, where everyone has the right not to be unfairly dismissed once they have accrued the ‘qualifying service’ of one or two years service (the law changed on 06 April 2012), anxieties about falling foul of the legislation can prevent managers taking decisive action when an employee is failing to respond to concerns about their performance.
‘It will take too long’, ‘HR won’t back me’, ‘they’ll accuse me of harassment’ are frequent concerns.
The main thing to remember is that the law seeks to strike a balance between the employer who needs staff who can do their job, and the individual who needs to be treated fairly (told clearly, given the opportunity to improve, warned etc.).
Essentially, much of this process of ‘fairness’ is covered in the ACAS Code of Practice 1: Disciplinary and grievance procedures, (pick up an A4 ‘mindmap’ aide memoire) and many organisations will have their own procedures for dealing with this sort of issue.
If the employee you are dealing with does not have the ‘qualifying service’, you may decide not to follow this sort of procedure, but before you do that, check out ‘Has it really got easier to dismiss employees’.
Here I deal with the process for dealing with a poor performing employee who has the ‘qualifying service’ and has not responded to your informal efforts to improve their performance – see tweets 1 to 10!
Tweet #11/50: It’s the job of managers to set and uphold standards. Employees must be told what the standards are. You will need to be able to demonstrate that you have fulfilled your responsibilities in terms of providing any appropriate training if the employee is being asked to do something new, or if it is something that they could not have reasonably have expected to be able to do.
Tweet #12/50: Don’t be afraid of saying ‘this is how I want it done’. The ‘I’ word is very powerful, avoid blaming ‘the Company’ or ‘my boss’.
Tweet #13/50: You can move the goal posts, as long as you behave reasonably when you do this. Change is an accepted fact, and Employment Tribunals (ETs) accept that the content and standards of a role may change over time. How a job is performed, or the standards required are rarely contractual, but employers do owe employees a duty of ‘trust and confidence’ which in this context would mean, amongst other things, that changes should not be introduced without time to adapt, or as a means of making life uncomfortable for staff.
Tweet #14/50: Make sure that the problem really is the individual’s capability to do the job. If they have the skills, and are just not using them, then that could be poor conduct, and not poor performance.
So, let’s now assume that we are dealing with an employee who is not performing adequately, has not responded to our informal motivation (Tweets 1 to 10!), and so now we have to put things formally in order to ensure that they take the issues more seriously, and that we have evidence of a fair process should we not be successful in improving their performance.
Tweet #15/50: Write notes on your final ‘informal’ discussion – the one before you start to use the language of ‘warnings’. Writing notes during a discussion usually has a negative impact on the atmosphere, so you won’t want to be doing it at every meeting. You will, however, benefit from evidence that you tried to tackle the performance issues informally. You can write notes after a meeting (ETs accept contemporaneous notes as evidence, and this usually means written during a meeting or within 48 hours afterwards). In any case, it will be useful to have informal discussions confirmed in writing.
Tweet #16/50: Meet with them and let them know that since your informal discussions have not resulted in the required performance improvement, you will now have to move onto more formal action. Don’t worry if you do not have an organisational policy that covers this situation (much to a lot of people’s surprise, the law does not require you to have one), it is what you actually do that matters.
Tweet #17/50: Let them know that you want to discuss the situation at a meeting that may lead to a warning, and that you will confirm the details in writing. Keep your eye on the ball here. Your goal should still be to get the performance improvement you are after. We will call this ‘Meeting 1’.
Tweet #18/50: Confirm ‘Meeting 1’ in writing and make it clear what your concerns are about. As well as this, deal with domestic details (time, place, who will be present etc.) and you should include any documentary evidence to which you will refer and advise them of their right to be accompanied.
Tweet #19/50: They will need to know that the meeting could result in a warning – in most instances this will be referred to as a ‘disciplinary warning’, but some organisations have separate procedures for performance issues where it may be called something like a ‘performance improvement note’.
Tweet #20/50: Avoid unnecessary delay before meetings, but do give enough time to prepare. Usually, unless the issues are very complex, a couple of days may be adequate time for preparation, particularly when there have been extensive informal discussions. Your procedures may require a specific notice period for a meeting – typically 5 or 7 days.
Tweet #21/50: If they ask for someone to speak in support of them (a witness), you will have to give the matter some consideration. You can ask them to get their witness to write a statement, rather than attend a meeting, but, in any case, employees rarely do this for performance issues. It is more common when you are dealing with poor conduct.
Tweet 22/50: At ‘Meeting 1’, explain the issue (the performance shortfall and its impact), outline the evidence, hear what they have to say, and thoroughly discuss, before making your decision. You will want to avoid over formality at this stage, but you might find our ‘Handling Disciplinary Hearings’ checklist to be a useful guide.
Tweet #23/50: If they have brought a companion with them, check if they have anything they want to say. They have a statutory right to ‘address the hearing’.
Tweet #24/50: It is normally recommended that you have an adjournment before making a decision, but this is probably unnecessary for ‘Meeting 1’. ETs have accepted that formality is less important with performance issues than it is with conduct. An adjournment is probably only necessary if the employee introduces things that have not been said before, and that need further consideration.
Tweet #25/50: Assuming you decide to proceed with a warning, reconvene if you have adjourned and, deliver a warning (you can call it a first warning if that is what your procedure calls it).
Tweet #26/50: Explain how you have arrived at your decision, demonstrating that you have heard any points that they have expressed.
Tweet #27/50: Clearly confirm the performance issues, the standards you are looking for, the review period, additional support that might be available, and the consequences of the improvement not happening. Tell them everything will be confirmed in writing and advise them of any right to appeal. Most organisations allow appeals after any disciplinary action, but some only allow it after higher levels e.g. second or third.
Tweet #28/50: End on a positive next step. ‘So I’d like you to arrange to spend a few hours shadowing Joe who is good at cold calling, and see how he does things, then we’ll meet next week to review that and talk about how to improve X and Y’.
Tweet #29/50: Confirm everything in writing! The law does not require you to do this (and even the ACAS Code of Practice only says ‘it is usual’), but a failure to do this may make a case difficult to defend in front of an ET.
Tweet #30/50: Make sure there is regular support during any review period – it will help ensure that the employee takes your concerns seriously.
So, here in Part 2 we have completed the first stage of a reasonable procedure for dealing with poor performance where an individual has failed to respond to informal encouragement.
In many case there is no need to progress any further. The individual either improves or leaves!
In Part 3 we will look at completing this procedure, and also the alternative approach of agreeing an alternative mutually acceptable termination arrangement which in many instances will avoid the need to put the individual through an elongated procedure.
Watch this space!
All of these ideas are regularly explored in our employment law and http://www.paradigmpartners.co.uk/performance-management.htm courses.
Ken Allison | 19 September 2017 | Paradigm Partners | www.paradigmpartners.co.uk
Ken Allison is an engaging trainer and speaker who manages to make his topics, on handling employment law related people issues and other HR stuff, highly interactive, challenging, entertaining, and above all, relevant to the 21st Century executive. Ken uses his understanding of managing businesses to show managers what they ‘can do’ rather than what they ‘cannot do’.
Through his firm’s ‘ExecutiveHR’ service, Ken also provides telephone based support services to businesses throughout the UK.
This blog is not a substitute for taking legal advice!