This month we tackle some of the complicated issues that arise in the context of performance management.
Is it possible to make performance management an accepted and normal part of employee engagement?
Can we fairly dismiss a member of staff for a single act of incompetence?
Can a final written warning be given for the first instance of poor performance?
How should we deal with employees who lapse after improvement?
Should older workers struggling with their performance be given a lighter workload?
Can we use protected conversations to short-cut or even avoid performance management?
What happens if the employee goes off sick or raises a grievance?
Do we have to go through the same process with senior leaders in their business?
1 Is it possible to make performance management an accepted and normal part of employee engagement?
Yes, and there are benefits to doing so. Managing performance is central to the relationship between managers and employees. It can be a key element of good communication and can foster the growth of trust and personal development.
If your employees are engaged they are more likely to be doing their best for your organisation, and will take pride in their job, demonstrate loyalty and be willing to go the ‘extra mile’. This process should start at the top, and leaders in your business should develop the skills required to share and transmit the strategic aims of your business and how each individual contributes to this.
Problems often arise if performance management issues are only addressed once there is a serious problem, or during annual appraisals. This will lead to performance management being perceived as a negative process and one closely linked to discipline, and the individual subject to a formal performance management programme may view the process with fear or resentment, emotions that are hardly likely to bring out the best in them.
All staff should understand the key competencies and skills required to do their jobs. Managers who sit down with their staff on a regular basis to discuss their progress, how they can improve and what support is available are more likely to see positive outcomes than those who only provide feedback when a problem arises.
Performance management should include recognising the contributions and good work the employee is already doing as well as looking for other ways in which they can develop.
2 Can we fairly dismiss a member of staff for a single act of incompetence?
Not usually. In most cases, for a poor performance dismissal to be reasonable, you will need to have issued warnings and provided support for the individual to improve. The Acas code of practice on disciplinary and grievance procedures recommends that employers give at least two warnings before they dismiss for poor performance.
It might be possible to dismiss without a prior warning in
exceptional cases such as where the job is inherently hazardous and the mistake put lives at risk or where the employee is so intransigent or inflexible that they are unwilling to change. However, in the vast majority of situations, employers are expected to investigate and to consider offering support to facilitate improved performance before they can reasonably contemplate dismissal.
3 Can a final written warning be given for the first instance of poor performance?
Yes, but this will usually be the exception rather than the rule and will only be applicable if the employee's performance is sufficiently serious. This might occur where the employee's actions have had, or are liable to have, a serious or harmful impact on the organisation.
An example is given in the non-statutory Acas guide of a final written warning being administered to the employee of a small firm who promises impossible delivery dates to a key customer, with the result that the customer threatens to take his business elsewhere.
This is only an example, but it is often the case that those in client-facing roles will place the organisation at risk of greater harm than those in roles which do not involve contact with third parties. This might be a factor which leads an employer to decide that a final written warning is appropriate. Where possible, the employer should document the particular risk or prejudice to the business.
4 How should we deal with employees who lapse after improvement?
It can be frustrating and seemingly counter-productive to manage the performance of an employee who improves during the warning period, then lapses soon afterwards. Where a pattern emerges it may well be reasonable to impose a longer warning period than usual (longer than, for instance, 6 or 12 months), pointing out to the employee that there needs to be a sustained improvement.
It may also be possible to move to a final written warning rather than going through a series of new warnings, particularly where the problems in performance are very similar in nature to those the employee was warned about in the past.
In cases where it is suspected that such behaviour is deliberate, amounting to wilful underperformance, it may be appropriate to deal with the matter as a misconduct issue.
5 Should older workers struggling with their performance be given a lighter workload?
No. Businesses are entitled to expect that all workers have the skills and competencies necessary to perform their job roles. Older people should not be given special treatment simply because of their age. For example, if you ignore performance targets for an older member of staff and enforce the same targets against younger staff members, the younger staff may be able to bring a claim of age discrimination against you on the basis that they are being treated less favourably than others of a different age.
If an older member of staff’s performance does start to decline, you should follow your normal process and try and find out what has caused this. If they accept that their performance has declined, it is helpful to have an open conversation with the employee and give him/her the opportunity of exploring other options such as working fewer hours or otherwise more flexibly. All staff with at least 26 weeks' service now have the right to ask to work flexibly (although not necessary the right to work the pattern they request). Clearly you should not pressurise the employee into making any changes to their terms and conditions of employment, or make them feel that they have no choice other than to reduce their hours or take on less demanding work.
If the employee has a disability you should consider whether this is impacting on their performance and, if so, whether there are any reasonable adjustments that can be made to their role. In order to gauge the effectiveness of a proposed adjustment, you should consult the disabled person concerned and obtain their views.
Alternatively, or additionally, you may wish to consider obtaining an expert opinion on the likely effect of any proposed step. This could involve seeking medical evidence on the extent of an employee's disability and its effect on his or her ability to carry out the job that they are employed to do, or the opinion of an occupational health or workplace specialist. In many cases, the need for independent expert advice may not be necessary; although in cases involving medical conditions that are unusual or whose effects are less predictable, medical evidence may be vital.
However, if the individual is struggling in one aspect of their job and you can remove this from their list of duties, it makes sense to do so (and will probably be considered to be a reasonable adjustment).
6 Can we use protected conversations to short-cut or even avoid performance management?
Settlement discussions can be an extremely useful way of dealing with performance management issues, particularly in circumstances where the individual has already started the process and does not appear to be showing sufficient improvement and you believe that they will not be able to do so. However, if they are handled badly they can lead to a breakdown of the employment relationship, and if the negotiations are unsuccessful, can make the situation much more difficult to resolve.
Pre-termination negotiations cannot be referred to in evidence in an ordinary unfair dismissal case unless anything is said or done which the tribunal considers to amount to "improper behaviour" – this will include circumstances in which the employee can assert that the conversion had a discriminatory element.
If you decide that a settlement discussion is the best way to deal with the situation, avoid approaching it with the employee “out of the blue”. There must be a clear basis for making the approach. If the employee has no hint that their behaviour or conduct is unacceptable, they are likely to be defensive and you are unlikely to achieve an agreement. Instead, ask the employee to attend a meeting to discuss his behaviour or performance on a mutually convenient date. Explain that the meeting is voluntary and will be a “settlement discussion”. Briefly explain what this means and that you hope that this will enable you and the employee to have a frank discussion about the issue/s.
Give the employee time to consider your proposal and comply with the statutory provisions regulating settlement discussions and agreements which require you to:
Put the offer in writing (by way of a settlement agreement).
Allow the employee at least 10 days to consider it (unless the employee agrees to a shorter period but do not pressurise him to do so).
Allow the employee to take independent legal advice (and be prepared to pay a reasonable sum for this if agreement can be reached).
7 What happens if the employee goes off sick or raises a grievance?
This can be very frustrating for the business. If the employee becomes ill and is signed off sick, you will usually need to wait until they return to continue with the process (and extend the deadlines for improvement to reflect their absence). You should follow your normal sickness procedure and keep in touch with the employee about their prognosis and when they expect to be able to return.
If the employee is off sick for a long period of time, you may have to consider reasonable adjustments to help the individual get back to work. These might include changing some of their duties which may, in itself, resolve the performance issues.
However, a grievance about the performance management process does not necessarily mean that you have to halt the process, but it is often sensible to do so. Often employees will allege that their manager is bullying them or is biased against them, and this will need to be investigated before the performance management process continues. Often employees fail to distinguish between reasonable management instructions and bullying, particularly if problems have not been addressed speedily or have been brushed under the carpet.
If you do suspend proceedings, this should be for a short period of time as it is generally better to keep the momentum going and avoid prolonged delays.
8 Do we have to go through the same process with senior leaders in their business?
Technically yes, but this is the situation where a settlement discussion may be more appropriate.
However, if you do follow a performance management process you should be able to reduce the length of time the employee has to improve, particularly in circumstances where they are not being asked to do anything different from their usual, presumably demanding, role.
If different skills are required to those the senior leader has (because, for example the role has evolved) you should look at offering training and support and giving the individual a reasonable time to improve
Published: 9 October 2017
Employment Law Update - October 2017
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