We’re often asked to advise employers on tricky employment performance issues. Here are some of our top tips on managing matters without the risk of an unfair dismissal claim:
Be clear about your concerns – you owe it to your employee, both morally and legally, to carry out an appropriate investigation so you know exactly what your worries are and can express those clearly to your employees
- Is it performance or conduct? – performance issues arise when an employee is incapable of functioning at the required level, in which case you need to take steps to help the employee to improve, whether that’s setting clear targets and timescales or providing training and mentoring. If the employee is capable of doing the job in hand, but is failing to do, then that becomes a conduct issue. You should then follow a disciplinary process, including appropriate warnings and set out expectations of expected behaviour.
- Decide whether formal action is needed – sometimes, an informal discussion is all that is needed to give an employee a wake up call and help them to focus and prioritise. Where you have a persistent poor performer or where there are more serious consequences from their approach, then promptly following a formal performance management process is essential.
- Manage repeat offenders – where an employee performs well whilst they’re subject to a formal performance improvement notice, and then lapses as soon as it expires, you can consider imposing warnings over extended periods. If you believe that they’re acting deliberately, then it may become a performance issue.
- Act consistently and reasonably to avoid discrimination claims – ensuring that you treat employees fairly is key to avoiding allegations of discrimination. But also, think carefully about whether performance requirements may be harder for some groups (such as working mothers or employees with a disability) to comply with. If those requirements can’t be justified then you risk claims for indirect discrimination. With any disabled employees you’re obliged to make reasonable adjustments – this can apply to both their job and/or your internal performance management procedures.
Often a quick chat before starting on a performance management process can help identify the risks and issues. Feel free to give Tiggy or Emma a call to talk things through or to help put in place clear performance policies and procedures.