Legal

How should HR handle a poor performer?

9 May 2018 By Philip Landau

Philip Landau explores the steps to take when tackling the problem – and the consequences of failing to do so

In today’s fast-paced world, employers often have little tolerance for poor performance in the workplace. However, confronting these issues can often be an awkward and challenging process for businesses. Alongside this, there is the risk of a claim for unfair dismissal, or even discrimination, if employers fail to adhere to the expected process.  

In many cases, it is possible to resolve issues with underperforming staff by dealing with the matter informally. Sitting down with your employee and explaining where they are going wrong, and what support and training you can give, may resolve the problem.

If you choose to take a more formal route, the code of practice from Acas provides the information and guidance to allow employers to deal fairly with staff in performance-related issues. If your company has its own policies, check that these are no less than the recommendations made by Acas. The code in itself is not legally binding; however, employment tribunals will consider whether or not the process fell short of the guidance when determining if a performance dismissal was fair.

The expected minimum requirements are:

Investigation

Before taking disciplinary action, you should carry out any necessary investigations to establish the facts and substantiate the poor performance. An investigation may include a review of appraisal records or work monitoring. If there is an investigatory meeting, this should not in itself result in any disciplinary action.

Notification

If it is decided that there is a disciplinary case to answer, your employee should be notified of this in writing, setting out the nature of the poor performance, the appropriate evidence and its possible consequences (such as being provided with a warning). Your employee should be given details of the time and venue of a disciplinary meeting, together with the right to be accompanied by a work colleague, a trade union representative or an official employed by a trade union. 

Opportunity to improve 

After a disciplinary meeting, you must consider whether disciplinary action is justified. Usually, your employee will be provided with a first written warning, setting out the nature of the poor performance, together with the improvement required and the timescale for such improvement. Their work should be properly reviewed and monitored during this time. 

You may decide to place your employee on a performance improvement plan – a more lengthy document specifically detailing what is required to improve (such as meeting sales targets) and giving timescales. What is a reasonable timescale will depend on the length of service, the extent of the underperformance and the effect the underperformance has on the business (for example, the relationship with clients).  

You should also notify your employee of the consequences of further disciplinary action, which may be a final written warning or a dismissal if the employee is already at the final written warning stage.  

You may find you have nailed the problem of poor performance only to find the performance dips again after the written warning has expired. One practical way to address this is to consider whether you can lengthen the time frame for improvement and/or extend the length of time that the warning will remain live. You should always explain, however, why you are doing this – namely to maintain an acceptable performance level for a sustained period – to help protect against allegations of harsh treatment or discrimination. 

Right to appeal

You should notify your employee in writing of their right to appeal any disciplinary sanction, together with the time period for appealing (this is usually up to five working days). The Acas code advises that the appeal should be dealt with as impartially as possible and ideally should be heard by a different manager than the one who dealt with the original disciplinary procedure and decision. As with the initial disciplinary meeting, your employee has a statutory right to be accompanied at an appeal hearing.

Philip Landau is an employment lawyer at Landau Law Solicitors

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