“Who’d Work For A Company With No Integrity In Staff Issues?” – Why Performance Management Matters
Whether helping employees to improve or responding when they don’t, you need to do things by the book, says Vicky Stanton
- by Vicky Stanton
- Accredited coach and former director of HR 4 Your Nursery Visit website
Why bother addressing employees’ conduct or performance when it doesn’t meet your standards? It’s simple: your business is valuable, and your people are your biggest asset. In addition to the actual salary you pay each member of staff, there are pension costs, NI contributions, training expenses and, of course, the cost of recruiting them in the first place.
If you manage these issues incorrectly, you could face an employment tribunal claim – the average cost last year was £13,851 for unfair dismissal (but the maximum is capped at £78,962). For discrimination claims there is no cap. It’s the lack of fair process that employers fall down on in such proceedings.
Every business needs to set standards of performance and conduct which may be included in your company rules, and of course it’s appropriate for an employer to address any failures to comply with these standards, providing the employee is aware of the rules.
But if you need a refresher on discipline and misconduct I urge you to read the ACAS Code of Practice on discipline. An employment tribunal judge will not be impressed if your policies and procedures don’t follow the code.
Performance and capability
Do you manage poor performance under your staff discipline policy? Don’t! Discipline matters are for where someone has broken the rules; capability is about how the employee is doing their job and managing them to a place of good performance, or managing them out of the business.
Make sure you have a capability policy and procedure. This isn’t the same as your discipline policy although it may work through the same steps.
The minute you start talking to a member of your staff about their performance, keep notes. With the worst-case scenario in mind, an employment tribunal only knows about what it’s told. If you can make contemporaneous notes, even better; maybe think about using a voice recorder. It’s hard to argue over these types of notes.
Dismissal for capability is a fair reason providing the employer has carried out a fair process. So do all of your employees know what’s expected of them? Have you taken steps to minimise the risk of poor performance? Did you appraise the employee properly, highlight the shortcomings and keep records? Did you provide training, supervision and encouragement? Did you warn the employee of the consequences and give them a chance to improve?
Disability Discrimination
It’s important to think about how Disability Discrimination may feature in capability. You need to consider if there is a health reason for poor performance. If someone is unfairly dismissed citing disability discrimination, there is no limit on compensation and no qualifying period in terms of length of service.
Think about whether the employee requires any adjustments to enable their performance to improve and if they are reasonable for you as an employer to make.
The procedure
If you commence capability proceedings with an employee, make sure you carry them through to a successful outcome. Starting the process and letting it lapse is worse than doing nothing. Tackling capability matters shows other employees that you will challenge poor performance. If you do nothing it will demotivate your good performers.
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Start with a preliminary or informal process. Sit down with your employee and talk to them about their performance. Ask them open-ended questions (Why? What? When? Where? Which? How?) to establish what the issues are. Explore if they understand their role and your expectations. Ask if they require further training, and if there are any external-to-work matters impacting on their performance.
Once you’ve discussed all relevant matters, agree an action plan. Write it down and both commit to it. Set a date for review.
If the poor performance continues (i.e. the review takes place and there has been little or no improvement), you need to gain some preliminary information (investigation) and then invite the employee to a meeting. This should be done formally by letter. The employee is entitled to representation in the same way they would at any other formal meeting with management.
This will lead to a capability meeting. This is a more formal approach than the stage outlined above but follows the same pattern. This time though, you will have the action plan to refer to and the lack of performance in meeting the objectives.
At the conclusion of this meeting, the employee will be issued with an improvement notice. This should state what the poor performance is, what improvement is expected, the timescale and the consequences of not achieving the action plan. The employee has the right of appeal.
It’s normal practice for this process to be followed with two more formal meetings, with the final meeting being a potential dismissal meeting (in line with ACAS misconduct processes).
And finally
Be professional in your note-taking (don’t doodle or write unprofessional comments in the margin; your notes will be evidence at any employment tribunal). And if you record it, don’t eat an apple… The tribunal didn’t look favourably on the employer who could be heard munching throughout a dismissal hearing!
Plan ahead
Three things to think about when managing performance
| • | Who conducts the meetings, and who will then conduct the appeal/further meetings/dismissal hearing, if necessary? Ideally all stages should be dealt with by a different manager who has the ability to overturn the decision of the previous one. |
| • | What will you do if the employee won’t attend? My advice here is to switch to the absence management process. |
| • | Do what you say you will do – if you expect the employee to keep their side of the agreement, you must keep yours. If you agree training, make sure it happens in the review period. |
Vicky Stanton is director of HR 4 Your Nursery. Call 0115 936 1250 or visit inspiringpeoplesolutions.net.
