Thursday 9 December 2010

Oliver McCannEmployment PartnerTaylors Solicitors

MANAGING POOR PERFORMANCE – THE LEGAL ANGLE!

SMART objectives Agree objectives with employees Review performance regularly Agree skills/behaviours needed for jobs Agree Personal Development Plans Appraisal systems held on clear evidence Train Line Managers on performance management Review performance management system

1. ACAS WORKPLACE MODEL

Eye on the possible end result

Five permitted reasons for dismissal (s98(2) ERA 1996)

Poor performance – capability or conduct

2. POOR PERFORMANCE – REASONS FOR DISMISSAL?

Capability (can’t) Defined s98(3) ERA – “skill, aptitude, health or

other physical or mental quality” Unable to carry out job to the Company’s required

standards Note – manager’s personal opinion not relevant Can include being slow, lack of quality, inflexible or

unadaptable Capability procedure

3. CAPABILITY

Conduct (won’t) Includes carelessness, idleness, negligence and

intransigence Disciplinary procedure

4. CONDUCT

Hold initial meeting to discuss poor performance issues Purpose is to identify cause Cause determines whether follow disciplinary or capability

route (unsure, give benefit of doubt to employee) If capability, identify whether medical or skill/aptitude issue Investigation can:-

- help identify early solution to problem, ie. medical issue such as eyesight or dyslexia, etc; and

- focus on reason for incapability – eg. lack of skill, aptitude or knowledge?

5. INVESTIGATE

Inadequate training Poor systems of work No supervision or support Unclear instructions/communications Incorrect or lack of correct tools Work overload Bullying or harassment from Line Manager Lack of understanding of job/duties, priorities or goals

6. CAUSE OF CAPABILITY ISSUES

The above are not the employee’s fault – need to clearly establish at outset what has caused the capability issue

Clear job description upon commencement, updated as necessary

Clear description of targets, objectives and Company’s standards relevant to role – keep under review

Regular performance appraisals – how often? All necessary training – practical and theory, updated when

necessary Informal counselling in between appraisals where

performance below standard – identify issues and cause – search for solutions but set clear objectives and targets

7. INFORMAL APPROACH

ACAS Code of Practice on discipline and grievance procedures

“Disciplinary procedures include misconduct and poor performance”

Fails to differentiate on the reasons for poor performance Does refer to possible separate capability procedure but

states should follow basic principles of fairness set out in Code

Failure to follow Code (or apply its principles) – can be taken into account on question of fairness and up to 25% uplift on awards

8. FORMAL APPROACH

Rules and procedures set down in writing Transparency and fairness Issues dealt with promptly and consistently Investigation to establish facts Employee informed of basis of problem (in writing, detail) Opportunity to put forward their case Right of accompaniment where formal warning or other

action taken Decision in writing Appeal process

9. PRINCIPLES OF ACAS CODE

Identify capability issue, eg. production output lower than acceptable levels

Obtain documentary evidence to support your concerns Compile witness evidence where necessary Checklist – training, targets/objectives, health issues Hold investigatory meeting and determine next steps based

on explanation Informal counselling, written/final decision, dismissal with

notice or demotion/offer of alternative position within employee’s capability

10. THE PROCESS

In writing Clearly set out issues of poor performance – if more than one,

identify each and what the specific failing is Set out employee’s response to allegations Outline findings and decision, eg. written warning, how long

for, etc Set SMART target in attached PIP for each area of poor

performance – specific, measurable, agreed, realistic and timeous

PIP to be signed and identify any steps Company to take to assist employee, ie. training, increased supervision, period of shadowing, weekly review meetings

11. THE DECISION

Identify what was required of employee Demonstrate employee was aware of those

requirements Prove employee had notice he was not meeting

requirements Show all reasonable support given to employee to

meet requirements Prove employee fell short of requirements despite

opportunity to improve

12. AVOIDING AN UNFAIR DISMISSAL

Davidson v. Kent Mears Ltd 1975 Taylor v. Alidair Ltd 1978 Fletcher v. St Leonard’s School 1987 Gozdzik and Scopigno v. Chlidema Carpet Co Ltd

1978 Laycock v. Jones Buckie Shipyard 1981 Burns v. Turboflex Ltd 1996

13. CASE LAW

Build flexibility into your capability procedures re: length of warnings, ability to extend where not fully satisfied

Expressly set out in capability policy/harassment policy that Managers have a duty to manage, which includes monitoring, encouraging and challenging – does not constitute harassment

A performance appraisal is not the forum for formal action but content of appraisal must be accurate and based on objective evidence wherever possible

Train Line Managers on appraisal systems and capability procedures

14. HR TIPS

Taylors SolicitorsEmployment Team

Oliver McCann – Elaine Hurn – James Bellamy

Rawlings HouseExchange Street

BLACKBURNBB1 7JN

Ninth Floor80 Mosley StreetMANCHESTER

M2 3FX

Tel: 0844 8000 263www.taylors.com