Thursday 9 December 2010
Oliver McCann
Employment Partner
Taylors Solicitors
MANAGING POOR PERFORMANCE –
THE LEGAL ANGLE!
1. ACAS WORKPLACE MODEL
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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
2. POOR PERFORMANCE – REASONS FOR
DISMISSAL?
 Eye on the possible end result
 Five permitted reasons for dismissal (s98(2) ERA
1996)
 Poor performance – capability or conduct
3. CAPABILITY
 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
4. CONDUCT
 Conduct (won’t)
 Includes carelessness, idleness, negligence and
intransigence
 Disciplinary procedure
5. INVESTIGATE
 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?
6. CAUSE OF CAPABILITY ISSUES
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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
The above are not the employee’s fault – need to clearly
establish at outset what has caused the capability issue
7. INFORMAL APPROACH
 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
8. FORMAL 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
9. PRINCIPLES OF ACAS CODE
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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
10. THE PROCESS
 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
11. THE DECISION
 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
12. AVOIDING AN UNFAIR DISMISSAL
 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
13. CASE LAW
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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
14. HR TIPS
 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
Taylors Solicitors
Employment Team
Oliver McCann – Elaine Hurn – James Bellamy
Rawlings House
Exchange Street
BLACKBURN
BB1 7JN
Ninth Floor
80 Mosley Street
MANCHESTER
M2 3FX
Tel: 0844 8000 263
www.taylors.com