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My workforce are underperforming – what can I do as an employer?

The current circumstances might permit a greater degree of tolerance but there will inevitably...

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My workforce are underperforming – what can I do as an employer?

30th September 2020

News : Employment Law

The current circumstances might permit a greater degree of tolerance but there will inevitably be a line to draw. As to the process, this shouldn’t really differ to the process used in any other circumstances relating to poor performance. I’ve set out what this might look like below.

Conduct or Capability?

It is important to establish this as it will determine the correct procedure to follow. An easy way to separate the two could be look to whether it’s the employee’s behaviour (an employee who ‘will not do’ something) that is the issue or whether the issues stem from their ability to do their job (an employee who ‘cannot do’ something). Behaviour indicates conduct and the correct process would therefore be a disciplinary process. Where the issues stem from an employee’s ability to do their job, a capability (or poor performance) process will usually be the best procedure to follow.

However, there are overlaps and this is not a hard and fast rule. Establishing the correct process is a significant step as the nature of the two process differ i.e. in disciplinary procedures, the goal will be to correct behaviour and to deter misconduct whereas under a capability procedure, the aim will be to support and encourage improvement.

What is underperformance?

Underperformance is when:

  • an employee is not managing to complete the tasks asked of them; or
  • an employee is not completing the tasks to the required standard

Can matters be resolved informally?

The first step, for the reasons listed below, should be to try to resolve things informally.

  1. It enables you to deal with the issue early and it may well prevent the issue from escalating. If so, no further action is likely to be necessary.
  2. You are likely to establish the reasons behind the underperformance which could then mean you are able to put measures in place to prevent the issues from reoccurring. NB: If the employee is disabled under the Equality Act 2010, you will be under a duty to make reasonable adjustments and to not discriminate against them.
  3. You might identify that further training or support is needed. Whilst you might have some initial outlay in terms of cost for the training, this is likely to be less costly and time consuming than having to trudge through a formal procedure.
  4. Exhausting the informal steps first goes a considerable way in demonstrating the fairness of an overall process.

An empathetic approach in this informal stage is likely to have a better outcome. Something along the lines of “We’re a little concerned about you as you don’t seem to be working to your usual high standards. It there anything we can help with?” Discuss your concerns with their performance and listen to what they have to say. Set out what is expected of them whilst discussing any further training or support that they may require – if it is, it’s important that this is then provided promptly. Discuss informal targets for improvement and set out a provisional time-scale for review.

If the informal steps do not have the desired outcome then an employer should follow the formal procedure.

Formal Procedure

Investigation

Before you decide to follow a formal capability procedure, you should first carry out a reasonable investigation to determine that this is necessary. This may involve reviewing an employee personnel file, performance appraisal notes, gathering relevant documents, policies and procedures, monitoring work and, if appropriate, speaking with the employee. The findings should be shared with the employee to give them the opportunity to respond at a hearing.

Capability meeting(s)

An employee has a right to bring a companion (a colleague or trade union representative) to any formal capability meetings. These meetings should be held in private and should involve you setting out the required standards and where the employee has fallen below. Invite the employee to put forward their views and comments so you can better understand the reasons for their underperformance. Work out if anything can be done to assist with their improvement – do they require additional training, supervision or mentoring?

Set ‘SMART’ (specific, measurable, achievable, relevant and time-specific) targets and agree how the employee’s progress will be monitored moving forwards. Ensure you explain the consequences of ongoing underperformance.

Further capability meetings will focus on whether an employee’s performance has improved and if it hasn’t, the reasons for this and whether anything further can be done to support them.

Warnings

Following the capability meeting(s) if you decide that an employee’s performance is unsatisfactory, a written warning might be appropriate. Where performance has considerably fallen below or continues to fall below a satisfactory standard, you may decide that a final written warning might be more appropriate. Such warnings will normally remain active for 6 to 12 months.

It is good practice to give an employee at least two warnings, and therefore two opportunities to improve, before any dismissal for poor performance.

Dismissing an employee for poor performance

As you have probably already established, the process should be aimed at encouraging and supporting an employee to improve their performance. They should have been made aware of the required standards and given sufficient time to improve. Dismissing for poor performance should be a last resort and should only be where the formal process has been exhausted.

Appeals

Employees should be given the right to appeal the decisions/warning at each stage of the process. You should ensure that the manager who hears the appeal is suitably impartial and, where possible, more senior than the manager who made the original decision.

If you have any questions about the above or if you need to speak with a member of our specialist employment law department then please do get in touch.

We recognise that budgets might be limited and so it may also be helpful for you to know that we offer HR-Assist on fixed fee 12 or 24 month retainers. This will include support and guidance for all of your businesses HR needs. If you need any further information, please do not hesitate to contact us.

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