How to... Manage poor performance A quick and easy reference guide on the basics
1 Top tips on managing poor performance 1. Follow the Acas Code and any internal company poor performance procedure 2. Comply with your own procedures/policies 3. Try to tackle issues informally at an early stage 4. Investigate the poor performance allegations promptly 5. Invite the employee to a performance hearing and give them all evidence and sufficient time to prepare for that hearing 6. Hold the performance hearing 7. Consider the underlying cause of performance issues and provide appropriate training, mentoring, support and supervision 8. Consider all evidence carefully, decide the outcome and confirm the decision in writing promptly 9. Give the employee a right of appeal and deal with any appeal promptly, confirming the outcome in writing 10. Issue further warnings and/or take appropriate action, following a fair process, where performance issues persist About our HR How to Guides These bite-sized reference guides provide an outline of the processes commonly managed by HR in the workplace. They do not provide full detail of these processes and are not a substitute for legal advice, particularly as every situation will depend on the particular circumstances.
2 Managing poor performance Why is it important to get the process right? "Capability" is one of five potentially fair reasons for dismissal, and "poor performance" would usually fall within this category. However, if a fair procedure is not followed, it is highly likely a tribunal will find in any resulting claim that the dismissal was unfair, even if the employee's performance was sufficient to justify a dismissal. The Acas Code of Practice on Disciplinary and Grievance Procedures provides practical guidance to employers on how to carry out a fair procedure for misconduct and poor performance dismissals and should be followed where possible. Any unreasonable failure to do so can lead to 25% uplift in any compensation awarded. The Acas Code recommends employers should draft their own disciplinary rules and procedures which, for poor performance, may be contained in a separate capability procedure. Employers and managers should be trained on what the rules are, where they can be found and how they are to be used. Failure to follow internal procedures can lead to unfair dismissal claims. Tackle issues at an early stage Highlight performance issues early on, having constructive conversations with the employee about concerns with their performance and how they can be resolved. Regular appraisals and reviews can help identify problems before they escalate. Carry out an appropriate investigation If performance concerns persist, investigate the allegations of poor performance. The extent of this investigation will depend on the particular circumstances, but may include considering performance reviews, training records and appraisals, complaints by customers or employees, any failure to achieve sales targets or commission levels, and comments from the employee s managers. If the investigation reveals that the employee is capable but unwilling, consider treating this as a misconduct issue and start the disciplinary procedure.
3 Invite the employee to a poor performance hearing If the conclusion of the investigation is that further action is necessary, within a reasonable timeframe, invite the employee to a formal poor performance hearing at a reasonable time and place and inform them of their right to be accompanied at that hearing by a fellow worker or trade union representative. It is important that the letter to the employee sets out the nature of the alleged poor performance (in sufficient detail to enable them to respond to this at the hearing) and the possible consequences if their performance is found to have fallen below the required standards. The employee should be provided with all the evidence that will be relied on at the hearing within sufficient time to prepare for it. The performance hearing At the hearing, the employee should be given ample opportunity to present their case, and the cause of their underperformance should be explored and identified. Consider whether any disability, or a health or personal issue may have caused or contributed to their performance issues, as their performance should be managed appropriately in light of any such issue. If appropriate, discuss what remedial action will be taken, including agreeing targets for improvement and realistic timescales to reach those targets. Also discuss whether appropriate training, mentoring, support and supervision for the employee may be appropriate. The Acas Code recommends that employees are given at least two warnings and opportunities to improve before being dismissed for poor performance, unless there is gross negligence or the employee is still in their probationary period.
4 The outcome Following the hearing, and any further investigations, inform the employee in writing of the outcome, clearly setting out: details of the poor performance the improvement required (how to improve, targets for improvement and dates by which those targets should be met) details of any additional training, mentoring, support and supervision to be provided the consequences of failure to improve within the specified period Dealing with further poor performance If the employee does not show the required improvement within the timescale set, they should be invited to a further performance meeting to consider what should be done. It may be appropriate to issue them with a further warning, or warnings, in an effort to bring about the required improvement in performance. If, despite appropriate warnings being given, the employee's performance does not improve sufficiently, dismissal or other sanctions may be appropriate once the correct process has been followed. details of any other action that will be taken how long the warning will remain current the employee's right of appeal and instructions on how to appeal, within the relevant timescale Dealing with an appeal Please contact one of the partners in our team, or your usual advisor at Clyde & Co. Robert Hill Partner T: +44 20 7876 6214 E: robert.hill@clydeco.com Give the employee a right of appeal and if they appeal against the decision, they should be asked to provide full grounds of appeal. The appeal should be dealt with impartially by someone who was not involved previously, where possible. The employee should be invited to an appeal hearing within a reasonable timeframe and informed of their right to be accompanied at the hearing. After the appeal hearing, and any further investigations as necessary, the employee should be informed promptly of the decision in writing.
5 50 Offices 3,600 Total staff 390 Partners 1,500 Lawyers www.clydeco.com Clyde & Co LLP accepts no responsibility for loss occasioned to any person acting or refraining from acting as a result of material contained in this summary. No part of this summary may be used, reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, reading or otherwise without the prior permission of Clyde & Co LLP. Clyde & Co LLP is a limited liability partnership registered in England and Wales. Authorised and regulated by the Solicitors Regulation Authority. Clyde & Co LLP 2018 J411191 - January 2018